Exhibit 5
Jenkens & Gilchrist Parker Chapin LLP
AUSTIN, TEXAS
(512) 499-3800
THE CHRYSLER BUILDING CHICAGO, ILLINOIS
405 LEXINGTON AVENUE (312) 425-3900
NEW YORK, NEW YORK 10174 DALLAS, TEXAS
(214) 855-4500
(212) 704-6000 HOUSTON, TEXAS
FACSIMILE (212) 704-6288 (713) 951-3300
LOS ANGELES, CALIFORNIA
www.jenkens.com (310) 820-8800
SAN ANTONIO, TEXAS
(210) 246-5000
WASHINGTON, D.C.
(202) 326-1500
October 7, 2002
SmartServ Online, Inc.
Metro Center
One Station Place
Stamford, CT 06902
Gentlemen:
We have acted as counsel to SmartServ Online, Inc., a Delaware
corporation (the "Company"), in connection with the Company's filing of a
Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to the resale of an aggregate of
45,064 shares (the "Non-Callable Warrant Shares") of Common Stock, par value
$.01 per share (the "Common Stock"), of the Company, issuable upon exercise of
non-callable warrants (the "Non-Callable Warrants") issued by the Company to
Bonanza Master Fund, Ltd. ("Bonanza") and Vertical Ventures Investments LLC
("Vertical"; Bonanza and Vertical are collectively referred to herein as the
"Investors"), and 84,926 shares of Common Stock issuable upon the triggering of
certain anti-dilution provisions contained in the Non-Callable Warrants (the
"Anti-Dilution Shares"; the Non-Callable Warrant Shares and the Anti-Dilution
Shares are collectively referred to herein as the "Warrant Shares").
In connection with the foregoing, we have examined originals or copies,
satisfactory to us, of: (i) the Securities Purchase Agreement, dated May 20,
2002, as amended on June 5, 2002 (the "Purchase Agreement"), (ii) the
Non-Callable Warrants, (iii) the Company's Certificate of Incorporation, as
amended, (iv) the Company's By-laws, and (vi) resolutions of the Company's board
of directors authorizing the Company to enter into, and consummate, the
transactions contemplated by the Purchase Agreement, including the issuance of
the Non-Callable Warrants. We have also reviewed such other matters of law as we
have deemed relevant and necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
copies or facsimiles. As to any facts material to such opinion, we have, to the
extent that relevant facts were not independently established by us, relied on
certificates of public officials and certificates of officers or other
representatives of the Company.
Jenkens & Gilchrist Parker Chapin LLP
SmartServ Online, Inc.
October 7, 2002
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
Warrant Shares, upon issuance and payment by the Investors to the Company in
accordance with the terms of the Non-Callable Warrants, will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to us under the caption "Legal
Matters" in the prospectus constituting part of the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Act, the rules and
regulations of the Commission promulgated under Section 7 of the Act or Item 509
of Regulation S-B promulgated under the Act.
Very truly yours,
/s/ Jenkens & Gilchrist Parker Chapin LLP
JENKENS & GILCHRIST PARKER CHAPIN LLP