EXHIBIT 4.2
SmartServ Online, Inc.
up to
233,000 Shares of Common Stock
($.01 Par Value)
Placement Agent Agreement
-------------------------
January 11, 2000
America First Associates Corp.
415 Madison Avenue
3rd Floor
New York, NY 10017
Gentlemen:
1. Introductory.
SmartServ Online, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell up to 233,000 shares of its Common Stock,
$.01 par value (the "Shares"). The Company hereby appoints you as its exclusive
agent for the purpose of finding purchasers for and selling the Shares, subject
to the terms and provisions of this agreement, on a "best efforts basis".
The term "Placement Agent", as used herein, shall mean America
First Associates Corp. Whether or not so expressed, all obligations of the
Placement Agent and of the Company are several in accordance with their
respective interests and not joint, and nothing herein contained shall
constitute the Placement Agent or the Company partners of one another.
2. Representations and Warranties of the Company. The Company
represents and warrants to you that:
(a) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
power and authority to own or lease its properties and conduct its
business as described in the Private Placement Memorandum hereinafter
mentioned; and that the Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which such
qualification is required.
(b) A Private Placement Memorandum ("Memorandum") with respect
to the Shares has been prepared by the Company in conformity with the
requirements of the
Securities Act of 1933 (the "Act") and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission
thereunder. The Memorandum, together with exhibits, covering the Shares
proposed to be offered, have been carefully prepared by the Company
with the cooperation of the Placement Agent, and the Company shall
prepare all filings necessary with the Securities and Exchange
Commission, including the preparation and filing of Form D, and all
applicable filings under state securities laws. Copies of the
Memorandum have been delivered to you and the Company has consented to
the use of such copies for purposes permitted by the Act.
(c) There has been no order by any agency exercising
jurisdiction over the offering preventing or suspending the use of the
Memorandum. The Memorandum does not contain any untrue statement of a
material fact or omit to state any material fact required to be made
therein or necessary to make the statements therein not misleading;
provided, however, that the Company makes no representations or
warranty as to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by you
expressly for use therein.
(d) The securities of the Company conform to all statements
with regard thereto contained in the Memorandum, and the Company has an
authorized and outstanding capitalization as set forth in the
Memorandum. All of the outstanding shares of common stock of the
Company have been duly and validly issued and are fully paid and
nonassessable. Upon issuance of and payment for the Shares to be issued
and sold by the Company, as provided herein, such Shares will be duly
and validly authorized and issued, fully paid and nonassessable.
(e) Except as reflected in or contemplated by the Memorandum,
since the respective date as of which information is given in the
Memorandum, there has not been any material adverse change in the
financial condition or general affairs of the Company or any material
transaction entered into by the Company other than transactions in the
ordinary course of business.
(f) The financial statements contained in the Memorandum
fairly present the financial condition of the Company and the results
of its operations as of the dates and for the periods therein specified
and such financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved, and Ernst & Young LLP, who have
rendered reports on certain of such financial statements, are
independent public accountants as required by the Act and the Rules and
Regulations.
(g) No consent, approval, authorization, or other order of any
governmental authority is required in connection with the execution or
delivery by the Company of this agreement or the issuance and sale by
the Company of the Shares to be sold by it hereunder, except such as
may be required under the Act or state securities laws.
(h) Except as set forth in the Memorandum, there are no
actions, suits, or proceedings pending, or to the knowledge of the
Company threatened, against the
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Company or any of its property, at law or in equity or before or by any
federal or state commission, regulatory body, or administrative agency
or other governmental body, domestic or foreign, in which any adverse
decision might have a materially adverse effect on the business or
property of the Company.
(i) The execution and delivery of this agreement, the
consummation of the transactions herein contemplated, and compliance
with the terms of this agreement by the Company will not conflict with,
or constitute a default under, any indenture, mortgage, deed of trust,
or other agreement or instrument to which the Company is a party, or
the Certificate of Incorporation or Bylaws of the Company, or any law,
order, rule or regulation, writ, judgment, indenture, order or decree
of any government, governmental instrumentality, or court, domestic or
foreign, having jurisdiction over the Company or any of its property.
(j) The Company does not have any subsidiaries.
(k) Except as set forth in the Memorandum, the Company is not
in default in any material respect and no event has occurred which,
with the passage of time or the giving of notice, or both, would
constitute a material default in any contract or agreement to which the
Company is a party or by which it is bound.
3. Sale, Purchase and Delivery of Shares.
(a) Subject to the terms and conditions herein set forth, the
Company hereby appoints you as its exclusive agent from the date hereof
and until January 31, 2000 for the purpose of offering the Shares as
provided in this agreement on a "best efforts basis". You agree to use
your best efforts to sell the Shares as our agent. It is understood and
agreed that there is no firm commitment on your part to purchase any of
the Shares. If subscriptions for Shares of common stock are less than
233,000 Shares, you and the Company will agree to close or not to close
the offering. Conversely, if subscriptions exceed 233,000 Shares, you
and the Company and will agree or not agree upon the sale of Shares to
cover over-subscriptions.
You will offer the Shares hereunder at a price of
$15.00 per share. You will be entitled to a commission of 8% on each
Share sold by you as such agent payable by the Company on the Closing
Date from the funds deposited in the special bank escrow account
described in paragraph (b) hereof. You may, in your discretion, offer a
part of the Shares to dealers who are members of the National
Association of Securities Dealers, Inc., selected by you at such price
less a concession as you determine and you may form and manage a
selling group of such selected dealers.
Upon the closing of the offering, the Company will
sell to the Placement Agent warrants (the "Placement Agent Warrants")
for a purchase price of $.01 per Warrant, entitling the Placement Agent
to purchase an amount of Shares equal to 8% of the Shares sold in the
Offering. The Placement Agent Warrants will contain anti-dilution
provisions acceptable to the Placement Agent. The Placement Agent
Warrants will be exercisable for a period of five (5) years after the
date of the Memorandum and, if the
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Warrants are not exercised during such term, they shall automatically
expire. The exercise price of the Placement Agent Warrants shall be the
Share offering price. The Company will set aside and at all times have
available a sufficient number of Shares of its Common Stock to be
issued upon the exercise of the Placement Agent Warrants. The Warrants
will not be transferable to anyone, except to officers or affiliates of
the Placement Agent.
(b) All funds received from subscribers of Shares will be
deposited by you in a special noninterest bearing escrow account (or if
invested, such investment will only be made in permissible investment
under SEC Rule 15c2-4) to be maintained by you for the account of the
Company at a bank of your choice. All funds, represented by check or
otherwise, shall be made payable to you for our account and deposited
in escrow. On the Closing Date, you will distribute the funds then
deposited in such special bank escrow account, as their interests may
appear, to the Company, selected dealers, and to yourself.
In the event this agreement in terminated prior to
the Closing Date for any reason whatsoever, you shall promptly refund
to the subscribers of the Shares all funds which have been received
from them by you without interest.
All costs, expense, and charges incurred in
connection with the special bank escrow account shall be paid by the
Company.
(c) It is understood and agreed that, unless we agree
otherwise, if all Shares are not sold by you pursuant to this agreement
during the offering, we shall close with respect to the Shares sold.
(d) Closing of the offering will take place at your offices in
New York, New York, at 10 o'clock a.m., Eastern Time, on the earlier of
(i) five days from the date on which all of the Shares have been sold,
or (ii) January 31, 2000, said date being herein called the "Closing
Date". Certificates for the Shares registered in such a manner and in
such denominations as you may request will be delivered to you so that
you may examine and package such certificates for delivery at least ten
full business days after the Closing Date.
(e) The Company agrees that, within 90 days after the closing
of the offering of the Shares, it will file a Registration Statement
and all necessary amendments thereto under the Securities Act of 1933
registering the Shares of Common Stock subject to the offering and the
Common Stock underlying the Warrants to the Placement Agent. The
Company will use its best efforts to cause the above filing to become
effective. All expenses of such registration, including, but not
limited to, legal, accounting and printing costs, will be borne by the
Company, but the Company shall not be responsible for the cost of any
separate counsel to review the Registration Statement on behalf of or
to advise the shareholders or the Placement Agent. In the event the
Company fails to file the Registration Statement or to use its best
efforts to cause such filing to become effective, then the Company will
issue to the purchasers in this offering additional Shares amounting to
10% of the Shares purchased by such shareholders and to the Placement
Agent an additional 10% of Placement Agent Warrants.
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4. Covenants of the Company. The Company covenants and agrees with you
that:
(a) The Company will furnish to you and dealers selected by
you as soon as possible as many copies of the Memorandum (and of any
amended or supplemented Memorandum) as you may reasonably request. If
during such period any event occurs as a result of which the
Memorandum, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in the light of the circumstances
under which they were made, not misleading, or it shall be necessary to
amend or supplement the Memorandum to comply with the Act or with the
Rules and Regulations, the Company will forthwith notify you thereof
and on your request prepare and furnish to you and dealers selected by
you, in such quantity as you and such dealers may reasonably request,
an amendment or supplement which will correct such statement or
omission or cause the Memorandum to comply with the Act and with the
Rules and Regulations. The Company will not at any time prior to the
expiration of the offering period prepare any amendment to the
Memorandum of which you shall not previously have been advised and
furnished with a copy or to which your counsel shall have reasonably
objected in writing, or which is not in compliance with the Act and the
Rules and Regulations.
(b) The Company will, when and as requested by you, take all
action necessary to permit the offering of the Shares as contemplated
hereby under the securities laws of such states as you shall designate
and, during the period of twelve months after the date of the
Memorandum, to keep qualification of the Shares in good standing under
such laws; provided, however, that the Company shall not be required to
qualify as a foreign corporation or to file a consent to service of
process in any state in any action other than one arising out of the
offering or sale of the Shares. Said qualification of the Shares under
the securities laws of the said states shall be effected by your
counsel and the Company shall pay the legal fees therefor and all other
expenses incident thereto.
(c) Whether or not the transactions contemplated hereby are
consummated or this agreement is terminated, the Company will pay all
costs and expenses incident to the performance of the obligations of
the Company hereunder, including the fees and expenses of the Company's
counsel and accountants, registration fees, the costs and expenses
incident to the preparation, printing, shipping and filing of the
Memorandum and all amendments and supplements thereto (and such copies
thereof as the Placement Agent may reasonably require) and this
agreement and related documents, filing fees required to be paid to the
National Association of Securities Dealers, Inc., if any, the costs
incurred in connection with the qualification of the Shares under state
securities laws as provided in subparagraph (b) hereof (including the
fees and disbursements of your counsel in this connection). Payment to
you of a non-refundable expense allowance of $25,000, $15,000 of which
has been previously paid, and $10,000 to be paid upon closing or
termination of the offering.
(d) The Company will apply and utilize the proceeds from the
sale of the Shares in the manner described in the Memorandum.
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(e) The Company will comply with all obligations to the
Placement Agent and to its security holders undertaken by it in the
Memorandum.
5. Conditions of Placement Agent's Obligations. Your obligations as
provided herein shall be subject in your reasonable discretion to the accuracy
of the representations and warranties of the Company herein contained as of the
date hereof and as of the Closing Date, to the performance by the Company of its
obligations hereunder and the following additional conditions:
(a) It is agreed between the Company and you that all
documents and other information relating to the Company's affairs will
be made available upon request to you and your counsel at your office
or at the office of your counsel and copies of any such documents will
be furnished upon request to you or your counsel. Included within the
documents which must be made available as soon as possible are the
following: The Company's Certificate of Incorporation and By-laws and
all amendments thereto, minutes of all meetings of the Company's
incorporators, stockholders and directors, all financial statements and
correct copies of any and all material contracts, leases and agreements
to which the Company is a party and all reports and filings made by the
Company with the Securities and Exchange Commission within the prior
three years.
(b) You have not notified the Company that the Memorandum or
any amendment or supplement thereto contains an untrue statement of a
fact which in the opinion of your counsel is material, or omits to
state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) At the time of the execution of this agreement and at the
Closing Date, counsel for the Company, shall have furnished to you
their written opinion, addressed to you and dated as of the date it is
required to be delivered, in form and substance satisfactory to you,
with photostats or signed counterparts thereof for each of the
soliciting dealers, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has full corporate power and
authority to own and lease its properties and conduct its
business, as described in the Memorandum; and, the Company is
duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the conduct of
its business or its ownership or leasing of property requires
it to be qualified where the failure to be so qualified would
cause a material adverse effect on the Company; and
(ii) The Shares of Common Stock to be sold by the
Company hereunder, at the time of delivery to the Placement
Agent pursuant to Section 3 hereof, will be duly and validly
authorized and issued, fully paid and nonassessable and will
conform in all material respects to the description thereof
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contained in the Memorandum; other than as described in the
Memorandum there are presently no preemptive or other rights
to subscribe for or to purchase shares of Common Stock
pursuant to the Certificate of Incorporation or the law of the
State of Delaware, and none of the Shares of Common Stock
being sold hereunder by the Company will be issued in
violation of any such preemptive rights of any stockholder of
the Company; and all corporate action required to be taken for
the authorization, issue and sale of the Shares of Common
Stock has been validly taken; and
(iii) This agreement has been duly and validly
authorized, executed and delivered by the Company and
constitutes the valid and legally binding obligation of the
Company except insofar as indemnification of the Placement
Agent may be limited under applicable securities laws and
decisions thereunder.
(iv) The execution and delivery of and compliance
with this agreement by the Company, the consummation of the
transactions herein contemplated and the compliance with the
terms hereof will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any indenture, mortgage, deed of trust or
other material agreement or instrument known to such counsel
to which the Company is a party or by which it is bound or to
which its property is subject, or under its Certificate of
Incorporation or Bylaws. No consent, approval, authorization
or order of any court or governmental agency or body is
required for the consummation of the transactions by the
Company contemplated by this agreement, except such as have
been obtained under the Act and the Rules and Regulations and
such as may be required under state securities laws in
connection with the purchase and distribution of the Shares by
the Placement Agent.
(v) The statements in the Memorandum under the
caption "Description of Capital Stock" insofar as they are, or
refer to, descriptions of documents or statements of law or
legal conclusions, have been reviewed by them and are correct
in all material respects.
(vi) Such counsel does not know of any legal or
governmental proceedings required to be described in the
Memorandum which are not described as required, or of any
contracts (other than this agreement, as to which such counsel
need express no opinion) or documents of a character required
to be described in the Memorandum which are not described as
required.
Such counsel shall confirm that, in connection with the
preparation of the Memorandum, such counsel has participated in
telephone conferences with officers of the Company at which conferences
the contents of the Memorandum were discussed and (without taking
further action to verify independently the statements made in the
Memorandum, and without assuming responsibility for the accuracy or
completeness of such statements, except as provided in paragraph (v)
above) nothing has come to such counsel's attention that would lead
such counsel to believe that either the Memorandum
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(except for the financial statements and other financial data included
therein, as to which such counsel need express no opinion) contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statement
therein not misleading, provided, however, that we make no statement
herein whatsoever as to any of the financial statements or notes
contained therein or omitted therefrom or other financial, numerical,
statistical or accounting data included therein or omitted therefrom.
In giving such opinion, such counsel may rely as to matters of
fact upon statements and certifications of officers of the Company and
of other appropriate persons and may rely as to matters of law, other
than the law of the United States, upon an opinion or opinions of local
counsel acceptable to the Placement Agent, provided that any such
opinion or opinions are referred to in said opinion and that said
counsel shall state that they believe that you and they are justified
in relying thereon.
(e) At and as of the date hereof and the Closing Date, the
Placement Agent shall have received a certificate, dated as of the date
hereof and the Closing Date, signed by the chief executive officer and
the principal financial officer of the Company, in form and substance
satisfactory to you, stating in effect that except as may be reflected
in or contemplated by the Memorandum (i) the representations and
warranties of the Company in this agreement are true and correct as of
the date hereof and the Closing Date, and the Company has complied with
all of the material agreements and satisfied all the material
conditions on its part to be performed or satisfied at or prior to the
date hereof and the Closing Date; (ii) since the respective dates as of
which information is given in the Memorandum, there has not been any
material adverse change in the condition or in the business of the
Company considered as a whole; (iii) since such dates there has not
been any material transaction entered into by the Company other than
transactions in the ordinary course of business; and (iv) such other
matters as the Placement Agent or counsel for the Placement Agent may
reasonably request.
(f) Before the Closing Date, Michael G. Quinn, Esquire,
counsel for the Placement Agent, shall have been furnished with such
opinions and copies of such documents as he may reasonably require for
the purpose of enabling him to pass upon the issuance and sale of the
Shares as herein contemplated and related proceedings, or in order to
evidence the accuracy or completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Shares as herein contemplated and all
opinions and certificates mentioned above or elsewhere in this
agreement shall be satisfactory in form and substance to the Placement
Agent and said counsel for the Placement Agent.
(g) Except as contemplated in the Memorandum, subsequent to
the respective dates as of which information is given in the
Memorandum, there shall not have been any material change in the
capital stock or long-term debt of the Company or any adverse change,
or any development specifically related to the business of the Company
involving a prospective material adverse change, in the condition
(financial or other), net
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worth or results of operations of the Company which, in the judgment of
the Placement Agent, makes it impractical or inadvisable to offer or
deliver the Shares on the terms and in the manner contemplated in the
Memorandum.
(h) There shall have been furnished or caused to be furnished
to the Placement Agent such further certificates and documents as the
Placement Agent may have reasonably requested.
If any of the conditions specified in this Section 5 shall not have
been fulfilled, this agreement may be terminated by the Placement Agent upon
notice to the Company or such conditions may be waived, modified or the time for
fulfillment thereof may be extended by the Placement Agent upon notice to the
Company.
6. Indemnification.
(a) The Company will indemnify and hold harmless the Placement
Agent, its agents and each person, if any, who controls the Placement
Agent within the meaning of the Act against any losses, claims, damages
or liabilities, joint or several, to which they may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Memorandum or any amendment or supplement thereto
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will
reimburse the Placement Agent and each such controlling person for any
legal or other expenses reasonably incurred by the Placement Agent or
such controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) The Placement Agent will indemnify and hold harmless the
Company, each of its directors, each of its officers and each person,
if any, who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Company or any
such director, officer or controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Memorandum or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by the Placement Agent specifically for use therein; and
will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability which the Placement Agent may otherwise have.
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(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section except
to the extent the indemnifying party is prejudiced by such delay. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, join with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
The indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of the
counsel by such indemnified party has been authorized by the
indemnifying party, (ii) the indemnified party shall have been advised
in writing by counsel that there may be conflict of interest between
the indemnifying party and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of one such counsel for all of the
indemnified parties shall be at the expense of the indemnifying party.
An indemnifying party shall not be liable for any settlement of any
action or claim effected without its consent.
7. Termination.
(a) This agreement may be terminated at any time prior to the
Closing Date by the Placement Agent by written notice to the Company if
(i) the Company has sustained a loss, whether or not insured, by reason
of fire, flood, accident or other calamity, which, in the reasonable
opinion of the Placement Agent substantially affects the value of the
properties of the Company or materially interferes with the operation
of the business of the Company, (ii) all trading in securities on the
New York Stock Exchange or the American Stock Exchange has been
suspended or limited or minimum prices have been established on any
such exchange, (iii) a banking moratorium has been declared by either
federal or New York state authorities, (iv) an outbreak of major
hostilities or other national or international calamity has occurred
which, in each case, make it inadvisable to proceed with the offering
or (v) any action has been taken by any government in respect of its
monetary affairs which, in the reasonable opinion of the Placement
Agent, has a material adverse effect on the United States securities
markets.
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(b) If this agreement shall be terminated pursuant to Section
5 or this Section 7, or if the obligation provided for herein are not
consummated because of any refusal, inability or failure on the part of
the Company to comply with any of the terms or to fulfill any of the
conditions of this agreement, or if for any reason the Company shall be
unable to perform all its obligations under this agreement, the Company
shall not be liable to the Placement Agent for damages on account of
loss of anticipated profits arising out of the transactions covered by
this agreement, but the Company shall remain liable to the extent
provided in Sections 4(d), 6(a) and 6(c) hereof.
8. Survival of Indemnities, Representations and Warranties. All
representations, warranties, agreements, covenants and indemnities contained
herein of the Company and of the Placement Agent shall remain operative and in
full force and effect and shall survive the delivery of and payment for the
Shares or termination of this agreement pursuant to Section 7 hereof, as the
case may be.
9. Parties in Interest. This agreement shall inure to the benefit of
and be binding upon the Company and the Placement Agent, the officers, directors
and partners of such parties, each controlling person referred to in Section 6
hereof, and their respective successors and assigns. Nothing in this agreement
is intended or shall be construed to give to any person, firm or corporation,
other than the parties hereto and their respective successors and assigns and
the controlling persons and officers and directors referred to in Section 6
hereof, any legal or equitable right, remedy or claim under or in respect of
this agreement or any provision herein contained; this agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns, and such controlling persons, directors and officers, and for the
benefit of no other person or corporation.
The term "successor" as used in this agreement shall not
include any purchaser, as such purchaser, of any Shares from the Placement Agent
or any selected dealer.
This agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes any letter of
intent previously entered into.
10. Notices. All communications, terminations and notices hereunder
shall be in writing and, if sent to the Placement Agent, shall be mailed or
delivered and confirmed to America First Associates Corp., 415 Madison Avenue,
3rd Floor, New York, NY 10017, Attn: Joseph Genzardi, President; if sent to the
Company shall be mailed or delivered to SmartServ Online, Inc., One Station
Place, Stamford, Connecticut 06902, Attn: Thomas W. Haller, CFO.
11. Counterparts. This agreement may be executed in any number of
counterparts which, taken together shall constitute one and the same instrument.
12. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
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Please sign the enclosed duplicate of this letter, whereupon this
letter will become a binding agreement between the parties in accordance with
its terms.
Very truly yours,
SMARTSERVE ONLINE, INC.
By:
---------------------------------
Thomas W. Haller, Chief Financial
Officer
The foregoing agreement is hereby confirmed and accepted, as of the date first
above written.
AMERICA FIRST ASSOCIATES CORP.
By: ___________________________________
Joseph Genzardi, President