EXHIBIT 4.5
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT OR APPLICABLE BLUE SKY LAWS.
THE REGISTERED HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, AGREES
THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS WARRANT EXCEPT AS HEREIN
PROVIDED.
No. ____
COMMON STOCK PURCHASE WARRANT
For the Purchase of ____ Shares of Common Stock
of
SMARTSERV ONLINE, INC.
(a Delaware corporation)
1. Warrant.
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THIS CERTIFIES THAT, in exchange for due consideration, the
sufficiency of which is hereby acknowledged, paid by or on behalf of _________
(the "Holder"), as registered owner of this Warrant, to SMARTSERV ONLINE, INC.
(the "Company"), the Holder is entitled, at any time and from time to time
during the period commencing on ___ _, ___, and expiring on and after 5:00 p.m.,
New York time on ___ __, ____ (the "Exercise Period"), to subscribe for,
purchase and receive, in whole or in part, up to ________ (______) shares of
Common Stock, $.01 par value (the "Common Stock"), of the Company. This Warrant
is initially exercisable as to each share of Common Stock covered thereby at
________ ($______) per share (the "Exercise Price"). The term "Exercise Price"
shall mean the initial exercise price or such exercise price, as adjusted in the
manner provided herein, depending on the context.
2. Exercise.
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In order to exercise this Warrant, the exercise form attached
hereto must be duly executed, completed and delivered to the Company, together
with this Warrant and payment of the Exercise Price for the shares of the Common
Stock being purchased. If the rights represented hereby shall not be exercised
on or before the end of the Exercise Period, this Warrant shall become and be
void and without further force or effect and all rights represented hereby shall
cease and expire.
3. Restrictions on Transfer; Registration of Transfers.
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3.1 Restrictions on Transfer. The registered Holder of this
Warrant, by its acceptance hereof, agrees that prior to any proposed transfer of
any Warrants or any securities purchased upon exercise of the Warrants, if such
transfer is not made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), the Warrant holder will, if
requested by the Company, deliver to the Company:
(i) an opinion of counsel reasonably satisfactory in form and
substance to the Company that the Warrants or the securities
purchased upon exercise of the Warrants may be transferred
without registration under the Act;
(ii) an agreement by the proposed transferee to the impression
of the restrictive investment legend set forth below on the
Warrant or the securities to be received;
(iii) an agreement by such transferee that the Company may
place a notation in the stock books of the Company or a "stop
transfer order" with any transfer agent or registrar with
respect to the securities purchased upon exercise of the
Warrants; and
(iv) an agreement by such transferee to be bound by the
provisions of this Section 3 relating to the transfer of such
Warrant or the securities purchased upon exercise of such
Warrant.
Each Warrant holder agrees that each Warrant and each
certificate representing securities purchased upon exercise of this Warrant
shall bear a legend as follows unless such securities have been registered under
the Act:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The securities may not be offered for sale, sold or
otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an
exemption from registration under the Act or applicable blue
sky laws."
3.2 Registration of Transfers. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment form attached
hereto duly executed and completed, together with this Warrant and payment of
all transfer taxes, if any, payable in connection therewith. The Company shall
immediately transfer the number of Warrants specified in the assignment form on
the books of the Company and shall execute and deliver a new warrant or warrants
of like tenor to the appropriate assignee(s) expressly evidencing the right to
purchase the number of shares of Common Stock purchasable hereunder or such
portion of such number as shall be contemplated by such assignment.
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4. New Warrants to be Issued.
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4.1 Partial Exercise or Transfer. Subject to the restrictions
in Section 3 hereof, this Warrant may be exercised or assigned in whole or in
part. In the event of the exercise or assignment hereof in part only, upon
surrender of this Warrant for cancellation, together with the duly executed
exercise or assignment form and funds sufficient to pay any required transfer
tax, the Company shall cause to be delivered to the Holder without charge a new
warrant or new warrants of like tenor with this Warrant in the name of the
Holder evidencing the right to purchase, in the aggregate, the remaining number
of underlying shares of Common Stock purchasable hereunder after giving effect
to any such partial exercise or assignment.
4.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of an indemnification in favor of the Company, reasonably satisfactory to
it, the Company shall execute and deliver a new warrant of like tenor and date.
Any such new warrants executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute an additional contractual obligation
on the part of the Company.
5. Adjustments to Exercise Price and Number of Securities.
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5.1 Subdivision and Combination. In case the Company shall at
any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
5.2 Adjustment in Number of Shares. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Section 5, the number of
shares of Common Stock issuable upon the exercise of this Warrant shall be
adjusted to the nearest full number obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares of Common
Stock issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
5.3 Recapitalization. For the purpose of this Warrant, the
term "Common Stock" shall also mean any other class of stock resulting from
successive changes or reclassifications of Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par value to
par value.
5.4 Merger or Consolidation. In case of any consolidation of
the Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder(s) a supplemental warrant providing that the holder of each warrant
then outstanding or to be outstanding shall have the right thereafter (until the
stated expiration of such warrant) to receive, upon exercise of such warrant,
the kind and amount of shares of stock and other securities and property
receivable upon such consolidation or merger, by a holder of the number of
shares of
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Common Stock of the Company for which such warrants might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrants shall provide for adjustments which shall be
identical to the adjustments provided in Section 5. The above provision of this
Section shall similarly apply to successive consolidations or mergers.
5.5 Redemption of Warrants. This Warrant cannot be redeemed by
the Company without the prior written consent of the Holder.
5.6 Dividends and Other Distributions. In the event that the
Company shall at any time prior to the exercise in full of this Warrant declare
a non-cash dividend (other than a dividend consisting solely of shares of Common
Stock) or otherwise distribute to its stockholders any assets, property, rights,
evidences of indebtedness, securities (other than shares of Common Stock),
whether issued by the Company or by another, or any other thing of value other
than cash, the Holder of this Warrant shall thereafter be entitled, in addition
to the shares of Common Stock or other securities and property receivable upon
the exercise thereof, to receive, upon the exercise of such Warrant, the same
property, assets, rights, evidences of indebtedness, securities or any other
thing of value that it would have been entitled to receive at the time of such
dividend or distribution as if the Warrant had been exercised immediately prior
to such dividend or distribution. At the time of any such dividend or
distribution, the Company shall make appropriate reserves to ensure the timely
performance of the provisions of this Section 5.6.
5.7 Elimination of Fractional Interests. The Company shall not
be required to issue certificates representing fractions of shares of Common
Stock upon the exercise of the Warrant, nor shall it be required to issue scrip
or pay cash in lieu of any fractional interests, it being the intent of the
parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights as shall be issuable upon the exercise thereof.
6. Reservation.
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The Company shall at all times reserve and keep available out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon exercise of the Warrant, such number of shares of Common Stock or other
securities, properties or rights as shall be issuable upon the exercise thereof.
The Company covenants and agrees that, upon exercise of the Warrant and payment
of the Exercise Price therefor, all shares of Common Stock and other securities
issuable upon such exercise shall be duly and validly issued, fully paid and
nonassessable.
7. Certain Notice Requirements.
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7.1 Holder's Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holder the right to vote or consent or to
receive notice as a stockholder for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrant and its exercise,
any of the events described in Section 7.2 shall occur, then, in one or more of
said events, the Company shall
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give written notice of such event at least fifteen (15) days prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote
on such proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer books, as
the case may be.
7.2 Events Requiring Notice. The Company shall be required to
give the notice described in this Section 7 upon one or more of the following
events: (i) if the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company, or (ii)
a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business shall be proposed.
7.3 Notice of Change in Exercise Price. The Company shall,
promptly after an event requiring a change in the Exercise Price pursuant to
Section 5 hereof, send notice to the Holders of such event and change (the
"Price Notice"). The Price Notice shall describe the event causing the change
and the method of calculating same and shall be certified as being true and
accurate by the Company's Chief Executive Officer and Treasurer.
7.4 Transmittal of Notices. All notices, requests, consents
and other communications under this Warrant shall be in writing and shall be
deemed to have been duly given or made when hand delivered, or when delivered by
responsible overnight courier:
(i) If to the registered Holder of this Warrant, to:
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(ii) if to the Company, to:
SmartServ Online, Inc.
Metro Center
One Station Place
Stamford, CT 06902
Attention: Chief Executive Officer
Either of the Holder or the Company may change the foregoing address by notice
given pursuant to this Section 7.4.
8. Miscellaneous.
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8.1 Amendments. The Company and the Holder may from time to
time supplement or amend this Warrant without the approval of any other Holder
in order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
or to make any other provisions in regard to matters or questions arising
hereunder which the Company may deem necessary or desirable and which the
Company deems shall not adversely affect the interest of the Holder. All other
modifications or amendments shall require the written consent of the party
against whom enforcement of the modification or amendment is sought.
8.2 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this Warrant.
8.3 Entire Agreement. This Warrant (together with the other
agreements and documents being delivered pursuant to or in connection with this
Warrant) constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
8.4 Binding Effect. This Warrant shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company and their
permitted assignees, respective successors, legal representatives and assigns,
and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Warrant or
any provisions herein contained.
8.5 Governing Law; Submission to Jurisdiction. This Warrant
shall be governed by and construed and enforced in accordance with the laws of
the State of Connecticut, without giving effect to principles of conflicts of
laws. Any action, proceeding or claim against the Company or the Holder arising
out of, or relating in any way to this Warrant shall be brought and enforced in
the courts of the State of Connecticut or of the United States of America for
the Federal District of Connecticut, and the Company and the Holder irrevocably
submit to such jurisdiction, which jurisdiction shall be exclusive. The parties
hereto waive any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. The prevailing party in any such action shall
be entitled to recover from the other party all of its reasonable attorneys'
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefore.
8.6 Waiver, Etc. The failure of the Company or the Holder to
at any time enforce any of the provisions of this Warrant shall not be deemed or
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Warrant or any provision hereof or the right of the Company or
any Holder to thereafter enforce each and every provision of this Warrant. No
waiver of any breach, noncompliance or nonfulfillment of any of the provisions
of this Warrant shall be effective unless set forth in a written instrument
executed by the party or parties against whom
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or which enforcement of such waiver is sought; and no waiver of any such breach,
noncompliance or nonfulfillment shall be construed or deemed to be a waiver of
any other or subsequent breach, noncompliance or nonfulfillment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer on the __ day of ___ , ___.
SMARTSERV ONLINE, INC.
By:______________________________
Name: Thomas W. Haller
Title: Vice President
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Form to be used to exercise Warrant:
SMARTSERV ONLINE, INC.
Metro Center
One Station Place
Stamford, CT 06902
Date: __________________
The Undersigned hereby elects irrevocably to exercise the
within Warrant and to purchase __________ shares of Common Stock of SmartServ
Online, Inc. and hereby makes payment of $_____________ (at the rate of
$______________ per share) in payment of the Exercise Price pursuant thereto.
Please issue the shares as to which this Warrant is exercised in accordance with
the instructions given below.
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Signature
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Signature Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
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(Print in Block Letters)
Address
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NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
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Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer
of the within Warrant):
FOR VALUE RECEIVED, ________________________________ does
hereby sell, assign and transfer unto __________________________ the right to
purchase ____________ shares of Common Stock of SmartServ Online, Inc. (the
"Company") evidenced by the within Warrant and does hereby authorize the Company
to transfer such right on the books of the Company.
Dated:___________________
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Signature
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Signature Guaranteed
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
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