As filed with the Securities and Exchange Commission on September 30, 2002
Registration No. 333-90852
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SMARTSERV ONLINE, INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3750708
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(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE STATION PLACE
STAMFORD, CT 06902
(203) 353-5950
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
RICHARD D. KERSCHNER, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
SMARTSERV ONLINE, INC.
ONE STATION PLACE
STAMFORD, CT 06902
(203) 353-5950
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copy to:
MICHAEL J. SHEF, ESQ.
JENKENS & GILCHRIST PARKER CHAPIN LLP
THE CHRYSLER BUILDING
405 LEXINGTON AVENUE
NEW YORK, NEW YORK 10174
Telephone No.: (212) 704-6000
Facsimile No.: (212) 704-6288
Approximate date of commencement of proposed sale to public: As soon
as practicable after this Registration Statement becomes effective.
If the only securities on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_| ___________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| ___________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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Amount Proposed Proposed
Title of Each Class to Maximum Maximum
of Securities to be be Registered Offering Price Aggregate Amount of
Registered (1) per Share Offering Price Registration Fee
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Common Stock, $.01 par
value per share, issuable upon
exercise of warrants 50,000 $1.166 $ 58,300 $ 5.36
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Common Stock, $.01 par
value per share, issuable upon
exercise of warrants 2,325,361 $ .85 $1,976,557 $181.84
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Common Stock, $.01 par
value per share, issuable upon
exercise of warrants 250,000 $1.42 $ 355,000 $ 32.66
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Common Stock, $.01 par
value per share, issuable upon
exercise of warrants 3,884,209 $1.42(2) $5,515,577 $507.43
======================================================================================================================
(1) Pursuant to Rule 416(b), there shall be deemed covered hereby all
additional securities resulting from antidilution adjustments
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933; based on the average
of the bid and asked price reported on the Nasdaq National Market on
September 26, 2002.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
SUBJECT TO COMPLETION, DATED SEPTEMBER 30, 2002
The information in this prospectus is not complete and may be changed. We have
filed a registration statement relating to these securities with the Securities
and Exchange Commission. The selling stockholders may not sell these securities
nor may they accept offers to buy these securities prior to the time the
registration statement becomes effective. This prospectus is not an offer to
sell these securities and is not soliciting an offer to buy these securities in
any state in which the offer or sale is not permitted.
PROSPECTUS
SMARTSERV ONLINE, INC.
6,509,570 SHARES OF COMMON STOCK
o The selling stockholders are offering to sell 6,509,570 shares of
common stock of which 2,625,361 shares are issuable upon exercise of
warrants.
o We will not receive any proceeds from the offering of common stock.
o Our common stock is traded and quoted on the Nasdaq SmallCap Market
under the symbol "SSOLC." On September 26, 2002, the last reported bid
price of our common stock was $1.40 and the last reported asked price
was $1.43.
The address and telephone number of SmartServ's principal executive offices are:
One Station Place
Stamford, CT 06902
(203) 353-5950
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY CONSIDER THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS"
BEGINNING ON PAGE 3 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is September ___, 2002
TABLE OF CONTENTS
Page
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Risk Factors..................................................................3
Special Information About Forward Looking Statements..........................6
The Company...................................................................7
Use of Proceeds...............................................................7
Selling Stockholders..........................................................8
Plan of Distribution.........................................................10
Indemnification for Securities Act Liabilities...............................11
Where You Can Find More Information About Us.................................12
Legal Matters................................................................13
Experts......................................................................13
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You should read the entire prospectus and any documents incorporated by
reference carefully before purchasing SmartServ common stock. In this
prospectus, "SmartServ," "we," "us" and "our" refer to the business that is
owned and conducted by SmartServ Online, Inc. and its subsidiaries and not to
the selling stockholders.
RISK FACTORS
BEFORE YOU BUY SHARES OF OUR COMMON STOCK, YOU SHOULD BE AWARE THAT THERE ARE
VARIOUS RISKS ASSOCIATED WITH THE PURCHASE OF OUR COMMON STOCK. YOU SHOULD
CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF THE OTHER
INFORMATION IN THIS PROSPECTUS AND ALL DOCUMENTS INCORPORATED BY REFERENCE,
BEFORE YOU DECIDE TO PURCHASE SHARES OF OUR COMMON STOCK. THE TRADING PRICE OF
OUR COMMON STOCK COULD DECLINE DUE TO ANY OF THESE RISKS, AND YOU MAY LOSE ALL
OR PART OF YOUR INVESTMENT. YOU SHOULD ALSO REFER TO THE OTHER INFORMATION
CONTAINED IN THIS PROSPECTUS, INCLUDING THE DOCUMENTS WE INCORPORATE BY
REFERENCE UNDER "WHERE YOU CAN FIND MORE INFORMATION ABOUT US".
WE HAVE A HISTORY OF LOSSES AND IF WE DO NOT ACHIEVE PROFITABILITY WE
MAY NOT BE ABLE TO CONTINUE OUR BUSINESS
Although we had net income of $2,937,591 for the six month transition
period ended December 31, 2000, we incurred net losses of $7,571,360 for the six
months ended June 30, 2002, $14,819,860 for the year ended December 31, 2001,
$30,993,559 for the year ended June 30, 2000, $7,124,126 for the year ended June
30, 1999, $5,040,009 for the year ended June 30, 1998, $4,434,482 for the year
ended June 30, 1997 and $2,966,287 for the year ended June 30, 1996. Included in
the June 30, 2000 amount was a non-cash charge for stock-based compensation of
$30,271,024. On June 30, 2002, we had an accumulated deficit of $72,393,193.
Losses have resulted principally from costs incurred in connection with
activities aimed at developing our software, information and transactional
services and from costs associated with our marketing and administrative
activities. We have incurred substantial expenses and commitments and continue
to have negative cash flows from operations. These losses raise substantial
doubt as to our ability to continue as a going concern. The funds raised
pursuant to the transaction described in the Selling Stockholder section on page
8 may not support our operations for an extended period of time. We can give no
assurance that we will be able to generate sufficient revenues or raise
additional capital on satisfactory terms to support our operations.
WE MAY BE DELISTED FROM THE NASDAQ SMALLCAP MARKET, WHICH COULD
ADVERSELY AFFECT THE LIQUIDITY AND VOLATILITY OF OUR COMMON STOCK
We were recently moved from the Nasdaq National Market to the Nasdaq
SmallCap Market. Our listing on the Nasdaq SmallCap Market is conditional,
however, on our meeting certain financial qualification requirements. While we
currently believe that we satisfy those requirements, we cannot guarantee that
we will be successful in remaining listed on the Nasdaq SmallCap Market.
Delisting from the Nasdaq SmallCap Market would require us to move our common
stock to the OTC Bulletin Board. The move to the OTC Bulletin Board could
decrease the liquidity and volume of our common stock and reduce the number of
market makers willing to trade in our stock, making it likely that wider
fluctuations in the quoted price of our common stock would occur. As a result,
there is a risk that stockholders will not be able to obtain accurate price
quotes or be able to correctly assess the market price of our stock. Increases
in the volatility could also make it more difficult to pledge the common stock
as collateral, if stockholders sought to do so, because a lender might also be
unable to accurately value the common stock.
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WE DEPEND ON A SMALL NUMBER OF CUSTOMERS, AND THE LOSS OF ANY ONE
CUSTOMER COULD ADVERSELY AFFECT OUR OPERATING RESULTS
Currently, substantially all of our revenues are generated through our
licensing arrangements with a small number of customers. Our results from
operations will depend upon numerous factors including the introduction and
market acceptance of new services, establishing alliances with strategic
marketing partners, competition and the regulatory environment. We anticipate
that our results from operations for the immediate future will continue to
depend to a significant extent upon revenues from a small number of customers.
In order to increase our revenues, we will need to attract and retain additional
customers. Our failure to obtain a sufficient number of additional customers
would adversely affect our results of operations.
OUR BUSINESS DEPENDS UPON REVENUE-SHARE ARRANGEMENTS WITH CARRIERS AND
ENTERPRISE CUSTOMERS AND SUCH REVENUES MAY NOT MATERIALIZE
We intend to sell our products and services primarily by entering into
non-exclusive agreements with carriers and enterprise customers who would brand
our products and services with their own private label and then promote them to
their subscribers, employees and clients. Our success will depend on:
o our ability to enter into these agreements with carriers and
enterprise customers;
o the ultimate success of these carriers and enterprise customers; and
o their ability to successfully market, sell and generate revenues from
our products and services.
Our failure to successfully maintain these relationships or the failure
of our customers to develop and sustain a market for our products and services
would have a material adverse affect on our overall performance.
THE MARKET FOR OUR BUSINESS IS IN THE DEVELOPMENT STAGE AND MAY NOT
ACHIEVE THE GROWTH WE EXPECT
Online information and transactional services, as well as the
convergence of wireless and Internet technologies, are developing markets. Our
future growth and profitability will depend, in part, upon consumer acceptance
of online information and transactional services in general and a significant
expansion in the consumer market for the delivery of such services via wireless
telephones, personal digital assistants and personal computers. Even if these
markets experience substantial growth, there can be no assurance that our
products and services will be commercially successful or will benefit from such
growth. Further, even if initially successful, any continued development and
expansion of the market for our products and services will depend in part upon
our ability to create and develop additional products and adjust existing
products in accordance with changing consumer preferences, all at competitive
prices. Our failure to develop new products and generate revenues could have a
material adverse effect on our financial condition and operating results.
WE COMPETE AGAINST LARGER, WELL KNOWN COMPANIES WITH GREATER RESOURCES
The market for Web and wireless based information and transactional
services is highly competitive and involves rapid innovation and technological
change, shifting consumer preferences and frequent new product and service
introductions. Most of our competitors and potential competitors have
substantially greater financial, marketing and technical resources than we have.
Increased competition in the market for our products and services could limit
our ability to expand and materially and adversely affect our results from
operations.
The principal competitive factors in both the Internet-based and
wireless services industries include content, product features and quality, ease
of use, access to distribution channels, brand recognition, reliability and
price. We believe that potential new competitors, including large multimedia and
information system companies,
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are increasing their focus on transaction processing. We face competition from
numerous services delivered through the Internet to personal computers. Although
in its infancy, the wireless arena also has its competitors, such as Semotus
Solutions, Inc., I3 Mobile, Inc., Aether Systems, Inc., 724 Solutions, Inc. and
Everypath. We expect competition to increase from existing competitors and from
new competitors, including telecommunications companies.
The information content provided through our software and communication
architecture is generally purchased through non-exclusive distribution
agreements. While we are not dependent on any single content provider, existing
and potential competitors may enter into agreements with these and other such
providers and thereby acquire the ability to deliver online information and
transactional services substantially similar to those provided by us.
WE ARE HIGHLY DEPENDENT ON OUR EXECUTIVE OFFICERS AND SEVERAL TECHNICAL
EMPLOYEES, THE LOSS OF ANY OF WHOM COULD HAVE AN ADVERSE IMPACT ON OUR FUTURE
OPERATIONS
We believe that, due to the rapid pace of innovation within our
industry, factors such as the technological and creative skills of our personnel
are more important in establishing and maintaining a leadership position within
the industry than legal protections of our technology. We are dependent on our
ability to recruit, retain and motivate high quality personnel. However,
competition for such personnel is intense and the inability to attract and
retain additional qualified employees or the loss of current key employees could
materially and adversely affect our business, operating results and financial
condition. We maintain and are the sole beneficiary of a key-person life
insurance policy on the life of (1) Mr. Sebastian E. Cassetta, our Chief
Executive Officer, in the amount of $1,000,000 and (2) Mr. Mario F. Rossi, our
Executive Vice President of Technology, in the amount of $500,000. The loss of
the services of either Mr. Cassetta or Mr. Rossi would have a material adverse
effect upon our business, financial condition and results of operations.
PROVISIONS IN OUR CHARTER MAY MAKE IT MORE DIFFICULT FOR A PERSON TO
ACQUIRE US AT A PREMIUM TO OUR CURRENT MARKET VALUE
Our charter restricts the ability of our stockholders to call a
stockholders' meeting and provides that our stockholders may not act by written
consent. Additionally, our Board of Directors is divided into three classes with
each class being elected by our stockholders in different years. Our charter
restricts the ability of our stockholders to change the number of directors and
classes of our board of directors. These provisions may have the effect of
deterring or delaying certain transactions involving an actual or potential
change in control of SmartServ, including transactions in which our stockholders
might otherwise receive a premium for their shares over then current market
prices, and may limit the ability of our stockholders to approve transactions
that they may deem to be in their best interests.
YOUR OWNERSHIP INTEREST, VOTING POWER AND THE MARKET PRICE OF OUR
COMMON STOCK MAY DECREASE BECAUSE WE HAVE ISSUED, AND MAY CONTINUE TO ISSUE, A
SUBSTANTIAL NUMBER OF SECURITIES CONVERTIBLE OR EXERCISABLE INTO OUR COMMON
STOCK
We have issued common stock, options, warrants and convertible notes to
purchase our common stock, and in the future we may issue additional shares of
common stock, options, warrants, preferred stock or other securities exercisable
for or convertible into our common stock. At September 18, 2002, there were
$392,000 of our prepaid warrants outstanding that were then convertible into
483,592 shares of our common stock. Additionally, we have issued warrants to
investors and consultants and granted options to employees for the purchase of
6,748,252 shares of our common stock. Except for 1,302,000 shares subject to
employee stock options, substantially all of such shares have been registered
for resale under the Securities Act. Additional shares are available for sale
under Rule 144 of the Securities Act. Sales of these shares or the market's
perception that these
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sales could occur may cause the market price of our common stock to fall and may
make it more difficult for us to sell equity securities in the future at a time
and price that we deem appropriate or to use equity securities as consideration
for future acquisitions. The funds raised pursuant to the transaction described
in the Selling Stockholders section on page 8 may not support our operations for
an extended period of time. We can give no assurance that we will be able to
generate sufficient revenues or raise additional capital on satisfactory terms
to support our operations. We continue to seek additional investors. If
additional sales of equity are effected, as to which there can be no assurance,
your ownership interest and voting power in SmartServ will be further diluted.
WE MAY NOT BE ABLE TO ADEQUATELY PROTECT OUR PROPRIETARY RIGHTS
We have designed and developed our own "device agnostic" information
and transaction platform, made up of our patent-pending "W2W MiddlewareTM" and
our content and processing engines. This platform is comprised of the "W2W
MiddlewareTM", based on Windows NT operating system and the authorization,
quote, news and transaction engines, based on Hewlett-Packard Company's Unix
operating system and Oracle's Corp.'s version 8i parallel server database.
Although we intend to protect our rights vigorously, there can be no assurance
that any of the measures to protect our proprietary rights will be successful.
In an effort to protect our proprietary rights, we rely upon a combination of
contract provisions, patents, trademarks, and copyright and trade secret laws.
We license the use of our products and services to our customers and partners
under agreements that contain terms and conditions prohibiting the unauthorized
reproduction of our products and services. We seek to protect the source code of
our application software and communications architecture as a trade secret and
as an unpublished copyrighted work.
We believe that our registered marks "SmartServ Online" and "SmartServ"
have significant value and are important to the marketing of our services. There
can be no absolute assurance, however, that our marks do not or will not violate
the proprietary rights of others, that our marks would be upheld if challenged
or that we would not be prevented from using our marks, any of which could have
an adverse effect on us. In addition, there can be no assurance that we will
have the financial resources necessary to enforce or defend our marks. We
believe that our software, products, services, service marks and other
proprietary rights do not infringe on the proprietary rights of third parties.
However, there can be no assurance that third parties will not assert
infringement claims against us with respect to current features, content or
services or that any such assertion may not require us to enter into royalty
arrangements or result in litigation.
WE ARE INVOLVED IN SEVERAL PENDING LEGAL PROCEEDINGS WHICH, IF RESOLVED
AGAINST US, COULD CAUSE DILUTION TO OUR STOCKHOLDERS AND HAVE A MATERIAL
NEGATIVE IMPACT ON OUR OPERATIONS
From time to time we have been, and expect to continue to be, a party
to legal proceedings and claims in the ordinary course of our business. Our
ongoing legal proceedings with Michael Fishman and Commonwealth Associates, L.P.
are described in the "Legal Proceedings" section of our Form 10-KSB for the year
ended December 31, 2001, which is incorporated by reference into this document
(See the section entitled "Where You Can Find More Information About Us" on page
12). While we expect to contest these matters vigorously, litigation is
inherently uncertain and an adverse judgment on any of these claims could cause
dilution to our stockholders, as well as harm to our business. Even if not
meritorious, any of these current and future matters could require the
expenditure of significant financial and managerial resources.
SPECIAL INFORMATION ABOUT FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus or in the documents we
incorporate by reference are "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995. These forward-looking
statements involve certain known and unknown risks, uncertainties and other
factors which may cause our
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actual results, performance or achievements to be materially different from any
future results, performance or achievements expressed or implied by these
forward-looking statements. These factors include, among others, the factors set
forth above under "Risk Factors." The words "believe," "expect," "anticipate,"
"intend" and "plan" and similar expressions identify forward-looking statements.
We caution you not to place undue reliance on these forward-looking statements.
We undertake no obligation to update or revise any forward-looking statements or
publicly announce the result of any revisions to any of the forward-looking
statements in this document to reflect future events or developments.
THE COMPANY
SmartServ provides Web and wireless applications, content services and
infrastructure that allow financial institutions, network service providers and
other businesses to deliver financial and other content, alerts and
notifications, as well as transaction services to their work forces and
customers - via wired or data-enabled wireless devices. SmartServ's products
include content, transaction processing and alert engines, proprietary W2W
MiddlewareTM that optimizes content delivery to a full array of devices, and a
suite of applications designed to enable businesses and their customers to
exploit the benefits of wireless data exchange and transactional capability. Our
products facilitate the delivery of customer proprietary data, as well as
delayed and real-time market data, business and financial news, sports
information, national weather reports and other business and entertainment
information in a user-friendly manner.
USE OF PROCEEDS
Each selling stockholder is selling all of the shares covered by this
prospectus for his, her or its own account. Accordingly, we will not receive any
proceeds from the resale of the shares. We will, however, receive $2,389,857 if
all of the warrants for the underlying shares of common stock being registered
are exercised. We expect to use these proceeds, if any, for general corporate
purposes.
SELLING STOCKHOLDERS
SmartServ issued the common stock and the warrants to purchase common
stock that are covered by this prospectus to the selling stockholders (i)
pursuant to a private placement on September 9, 2002, (ii) as a finder's fee to
certain persons for finding investors for the September 9, 2002 private
placement, (iii) pursuant to a Settlement and Amendment Agreement with
Hewlett-Packard Company, dated September 6, 2002, and (iv) pursuant to an
amendment to a consulting agreement with Steven B. Rosner, dated September ___,
2002.
The September 9, 2002 private placement was consummated pursuant to a
stock purchase agreement dated September 9, 2002 between SmartServ and all the
selling stockholders except John Bishara, JSB Associates, W. Stephen P.
Harrington Trust, Shannon M. Harrington Trust, Tara J. Harrington Trust, David
A. Rosner, Lauren P. Rosner, Hewlett-Packard, Joseph Genzardi, Joseph Ricuppero
and Alpine Capital Partners, Inc. Pursuant to the stock purchase agreement, the
selling stockholders purchased 3,884,209 shares of common stock and warrants to
purchase 1,942,109 shares of SmartServ common stock, exercisable at $.85 per
share. The total purchase price for the shares and warrants was $3,544,346. The
purchase price was based upon the price of SmartServ's common stock on August
16, 2002, the day term sheets were signed with most of the investors. If all
these warrants are exercised, SmartServ will receive an additional $1,650,793.
SmartServ agreed to pay finder's fees consisting of $249,050, an expense
allowance of $25,000, and warrants to purchase 383,252 shares of SmartServ
common stock to Steven B. Rosner, America First Associates Corp., Alpine Capital
Partners, Inc., John Bishara and JSB Associates. SmartServ also agreed to pay
fees of up to $16,500, plus reasonable expenses, to the law firm
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representing certain of the selling stockholders. If the finder's warrants are
exercised, SmartServ will receive $325,764.
The registration rights agreement, dated September 9, 2002, entered
into by SmartServ and the selling stockholders who are parties thereto, provided
that SmartServ was required to prepare and deliver to the selling stockholders a
registration statement registering the shares offered for resale in this
prospectus within seven days of the closing of the transaction indicated in the
above paragraph. In addition, SmartServ is required to have the registration
statement, of which this prospectus is a part, declared effective within 60 days
of the filing of the registration statement with the SEC. SmartServ will bear
all fees relating to the filing of the registration statement.
The Settlement and Amendment Agreement with Hewlett-Packard provided
that, as partial consideration for Hewlett-Packard agreeing to amend SmartServ's
obligations to Hewlett-Packard, Hewlett-Packard would receive warrants to
purchase 50,000 shares of SmartServ common stock, exercisable at $1.166 per
share. If all these warrants are exercised, SmartServ will receive $58,300.
In connection with the amendment to Steven B. Rosner's consulting
agreement, SmartServ issued warrants to purchase 250,000 shares of SmartServ
common stock to Mr. Rosner, exercisable at $1.42 per share. If all these
warrants are exercised, SmartServ will receive $355,000.
America First Associates Corp., which received warrants to purchase
5,170 shares of SmartServ common stock as part of its finder's fee, distributed
the warrants to Joseph Genzardi and Joseph Ricuppero, the controlling persons of
America First Associates Corp. Steven B. Rosner, who received warrants to
purchase 186,370 shares of SmartServ common stock as part of his finder's fee,
gifted warrants to purchase 75,000 shares of SmartServ common stock to W.
Stephen P. Harrington Trust, Shannon M. Harrington Trust, Tara J. Harrington
Trust, David A. Rosner and Lauren P. Rosner.
The following table sets forth the names of the selling stockholders,
the number of shares of common stock beneficially owned by the selling
stockholders as of September 18, 2002, the number of shares of common stock
being offered by the selling stockholders, the number of shares of common stock
underlying warrants being offered by the selling stockholders, the number of
shares of common stock each selling stockholder will beneficially own if the
stockholder sells all of the shares being registered and the selling
stockholder's percentage ownership of SmartServ common stock if all the shares
in the offering are sold. The shares being offered hereby are being registered
to permit public secondary trading, and the selling stockholders may offer all
or part of the shares for resale from time to time. However, the selling
stockholders are under no obligation to sell all or any portion of such shares
nor are the selling stockholders obligated to sell any shares immediately under
this prospectus. All information with respect to share ownership has been
furnished by the selling stockholders. Because the selling stockholders may sell
all or part of their shares, no estimates can be given as to the number of
shares of common stock that will be held by the selling stockholders upon
termination of any offering made hereby.
None of the selling stockholders have and, within the past three years
have not had, any position, office or other material relationship with us or any
of our predecessors or affiliates, except that (i) Steven Rosner has been and is
currently a greater than 5% stockholder of SmartServ and is a consultant to
Smartserv, (ii) Joseph Genzardi and Joseph Ricuppero are principals of America
First Associates Corp., which acted as an underwriter for SmartServ in a January
2000 private placement and signed a finder's agreement with SmartServ on May 14,
2002, (iii) Jeffrey Braile (the controlling person of JSB Associates) signed a
consulting agreement with SmartServ on _______, 2002, and (iv) Alpine Capital
Partners, Inc. signed a finder's agreement with SmartServ on July 31, 2002.
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Percent of
Shares of Common Beneficial Class Owned
Stock Shares of Ownership After After Offering
Beneficially Common Stock Warrant Shares Offering if All if All Shares
Selling Stockholders Owned to be Sold to be Sold Shares are Sold are Sold
- ------------------------------------ ---------------- ------------- -------------- ---------------- --------------
Ira M. Lubert 493,151 328,767 164,384 0 0
Jonathan Lubert Trust (1) 164,384 109,589 54,795 0 0
Kristine Lubert Trust (2) 164,384 109,589 54,795 0 0
Steven B. Rosner 1,245,861 273,972 498,356 473,533 3.47%
SPH Investments (3) 410,958 273,972 136,986 0 0
Robert F. Gorman 657,534 438,356 219,178 0 0
A and R Investments L.L.C. (4) 164,384 109,589 54,795 0 0
Daniel A. Gooze 328,767 219,178 109,589 0 0
S & H Management, Inc. (5) 410,958 273,972 136,986 0 0
Mark Todd 246,575 164,383 82,192 0 0
John A. Moore 83,835 55,890 27,945 0 0
Barry M. Ray 82,191 54,794 27,397 0 0
Crestview Capital Offshore (6) 32,877 21,918 10,959 0 0
Crestview Capital Fund II, LP (7) 394,521 263,014 131,507 0 0
Crestview Capital Fund, LP (8) 394,521 263,014 131,507 0 0
Robert H. Rosner IRA (9) 164,384 109,589 54,795 0 0
Frazier Investments (10) 493,151 328,767 164,384 0 0
Joel Rotter 328,767 219,178 109,589 0 0
Steven H. Erlbaum 164,384 109,589 54,795 0 0
Erlbaum Investments, L.P. (11) 164,384 109,589 54,795 0 0
Stanley Yau-Hok Chan 41,250 27,500 13,750 0 0
David N. Lewis 30,000 20,000 10,000 0 0
Joseph Genzardi (12) 10,725 0 2,585 8,140 *
Joseph Ricuppero (12) 10,725 0 2,585 8,140 *
Alpine Capital Partners, Inc.(13) 76,712 0 76,712 0 0
John Bishara 65,000 0 65,000 0 0
JSB Associates (14) 50,000 0 50,000 0 0
W. Stephen P. Harrington Trust (15) 8,000 0 8,000 0 0
Shannon M. Harrington Trust (16) 9,000 0 9,000 0 0
Tara J. Harrington Trust (17) 8,000 0 8,000 0 0
David A. Rosner 25,000 0 25,000 0 0
Lauren P. Rosner 25,000 0 25,000 0 0
Hewlett-Packard Company (18) 50,000 0 50,000 0 0
--------- --------- --------- ------- ----
Total 6,999,383 3,884,209 2,625,361 489,813 3.60%
- ---------------
* Less than 1%.
1. We have been advised by the selling stockholder that its trustees are
Howard Lubert, Jonathan Lubert and Dean Adler.
2. We have been advised by the selling stockholder that its trustees are
Howard Lubert, Jonathan Lubert and Dean Adler.
3. We have been advised by the selling stockholder that its controlling
person is Stephen P. Harrington.
4. We have been advised by the selling stockholder that its controlling
person is Robert Gorman.
5. We have been advised by the selling stockholder that its controlling
person is Sherwin Ray.
6. We have been advised by the selling stockholder that its controlling
persons are Richard Levy and Stewart Flink.
7. We have been advised by the selling stockholder that its controlling
persons are Richard Levy and Stewart Flink.
8. We have been advised by the selling stockholder that its controlling
persons are Richard Levy and Stewart Flink.
9. We have been advised by the selling stockholder that its controlling
person is Robert Rosner.
10. We have been advised by the selling stockholder that its controlling
person is Rina Rollhaus.
11. We have been advised by the selling stockholder that its general
partner is DMJ LLC and that DMJ LLC is controlled by Jon Erlbaum, Marc
Erlbaum and Daniel Erlbaum.
12. Shares of common stock beneficially owned includes 3,140 shares of
SmartServ common stock owned by America First Associates Corp.
13. We have been advised by the selling stockholder that its controlling
person is Evan J. Bines.
-9-
14. We have been advised by the selling stockholder that its controlling
person is Jeffrey Braile.
15. We have been advised by the selling stockholder that its trustee is
Stephen P. Harrington.
16. We have been advised by the selling stockholder that its trustee is
Stephen P. Harrington.
17. We have been advised by the selling stockholder that its trustee is
Stephen P. Harrington.
18. Hewlett-Packard Company is a publicly traded corporation.
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for
other broker-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholders may from time to time pledge or grant a
security interest in some or all of the shares of common stock or warrants owned
by them and, if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of common stock
from time to time under this prospectus, or under an amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933 amending the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this
prospectus.
The selling stockholders also may transfer the shares of common stock
in other circumstances, in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus. SmartServ will file a supplement to this prospectus after it
has received notice from a selling stockholder that a donee or pledgee of such
selling stockholder intends to sell more than 500 shares of SmartServ common
stock.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933 in connection with such sales. In
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such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act of 1933.
SmartServ is required to pay all fees and expenses incident to the
registration of the shares. SmartServ has agreed to indemnify the selling
stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act of 1933. SmartServ has paid a finder's fee
to (i) Steven B. Rosner, consisting of $157,500 and warrants to purchase 186,370
shares of SmartServ common stock, (ii) America First Associates Corp. consisting
of $7,548 and warrants to purchase 5,170 shares of SmartServ common stock, (iii)
Alpine Capital Partners, Inc., consisting of $49,000 and warrants to purchase
76,212 shares of SmartServ common stock, (iv) John Bishara, consisting of
warrants to purchase 65,000 shares of SmartServ common stock, and (v) JSB
Associates, consisting of $35,000 and warrants to purchase 50,000 shares of
SmartServ common stock. Steven B. Rosner has been and is currently a greater
than 5% stockholder of SmartServ and serves as a consultant to SmartServ,
America First Associates Corp. acted as an underwriter for SmartServ in a
January 2000 private placement and signed a finder's agreement with SmartServ on
May 14, 2002, Jeffrey Braile (the controlling person of JSB Associates) signed a
consulting agreement with SmartServ on _______, 2002, and Alpine Capital
Partners, Inc., signed a finder's agreement with SmartServ on July 31, 2002.
With certain exceptions, Regulation M precludes the selling
stockholders, any affiliated purchasers, and any broker-dealer or other person
who participates in such distribution from bidding for or purchasing, or
attempting to induce any person to bid for or purchase any security which is the
subject of the distribution until the entire distribution is complete.
Regulation M also prohibits any bids or purchases made in order to stabilize the
price of a security in connection with the distribution of that security. All of
the foregoing may affect the marketability of the shares offered by this
prospectus.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporate Law ("DGCL")
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a director to
a corporation or its stockholders for violations of the director's fiduciary
duty, except:
o for any breach of a director's duty of loyalty to the corporation or
its stockholders,
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
o pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock
purchases or redemptions), or
o for any transaction from which a director derived an improper
personal benefit.
The Amended and Restated Certificate of Incorporation of SmartServ
provides for the elimination of the liability of directors to the extent
permitted by the DGCL.
Section 145 of the DGCL provides, in summary, that directors and
officers of Delaware corporations are entitled, under certain circumstances, to
be indemnified against all expenses and liabilities (including attorney's fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to
-11-
indemnity for such expenses which the court shall deem proper. Any such
indemnification may be made by the corporation only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. SmartServ's by-laws entitle officers and
directors of SmartServ to indemnification to the fullest extent permitted by the
DGCL.
SmartServ has agreed to indemnify each of its directors and certain
officers against certain liabilities, including liabilities under the Securities
Act of 1933. In addition, SmartServ maintains an insurance policy with respect
to potential liabilities of its directors and officers, including potential
liabilities under the Securities Act of 1933.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
SmartServ pursuant to the provisions described above, or otherwise, SmartServ
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by SmartServ of expenses incurred or paid by
a director, officer or controlling person of SmartServ in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, SmartServ
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public from the
SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 to
register shares of our common stock. This prospectus is part of that
registration statement and, as permitted by the SEC's rules, does not contain
all the information included in the registration statement. For further
information with respect to us or our common stock, you may refer to the
registration statement and to the exhibits filed as part of that registration
statement. You can review and copy the registration statement and its exhibits
at the public reference facilities maintained by the SEC as described above. The
registration statement, including its exhibits, is also available on the SEC's
web site.
This prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
registration statement.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the SEC will automatically update or supersede this information. We
incorporate by reference the documents listed below and any future filing we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended:
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o Current Report on Form 8-K dated September 9, 2002 filed with the
SEC on September 13, 2002
o Quarterly Report on Form 10-QSB for the quarter ended June 30, 2002
filed with the SEC on August 14, 2002
o Quarterly Report on Form 10-QSB for the quarter ended March 31, 2002
filed with the SEC on May 17, 2002
o Amended Annual Report on Form 10-KSB/A for the fiscal year ended
December 31, 2001 filed with the SEC on April 30, 2002
o Annual Report on Form 10-KSB for the fiscal year ended December 31,
2001 filed with the SEC on April 16, 2002
o The description of SmartServ's common stock contained in
Post-Effective Amendment No. 1 to the Registration Statement on Form
SB-2 (333-34940) filed with the SEC on January 31, 2002
You may request a copy of these filings, at no cost, by writing to us
at our executive offices at One Station Place, Stamford, CT 06902, Attention:
Thomas W. Haller, or by calling us at (203) 353-5950.
LEGAL MATTERS
The validity of the shares of common stock offered in this prospectus
has been passed upon for us by Jenkens & Gilchrist Parker Chapin LLP, The
Chrysler Building, 405 Lexington Avenue, New York, New York 10174. Its telephone
number is (212) 704-6000.
EXPERTS
The consolidated financial statements of SmartServ Online, Inc.
appearing in SmartServ Online, Inc.'s Annual Report (Form 10-KSB) for the year
ended December 31, 2001 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon (which contains an explanatory
paragraph describing conditions that raise substantial doubt about SmartServ's
ability to continue as a going concern as described in Note 1 to the
consolidated financial statements) included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
-13-
======================================================= ======================================================
SmartServ Online, Inc.
6,509,570 SHARES OF
COMMON STOCK
We have not authorized any dealer,
salesperson or any other person to give any information
or to represent anything not contained in this
prospectus. You must not rely on any unauthorized
information. This prospectus does not offer to sell or
buy any shares in any jurisdiction where it is
unlawful. The information in this prospectus is current
as of September __, 2002.
-------------------------- --------------------
PROSPECTUS
-------------------------- --------------------
======================================================= ======================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which we will pay
in connection with the issuance and distribution of the securities being
registered on this registration statement. The selling stockholders will not
incur any of the expenses set forth below. All amounts shown are estimates.
Filing fee for registration statement ..........$ 727.29
Legal fees and expenses .......................$ 15,000.00
Accounting expenses.............................$ 10,000.00
Miscellaneous...................................$ 1,272.71
-----------
Total...........................................$ 27,000.00
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware ("DGCL")
provides that directors, officers, employees or agents of Delaware corporations
are entitled, under certain circumstances, to be indemnified against expenses
(including attorneys' fees) and other liabilities actually and reasonably
incurred by them in connection with any suit brought against them in their
capacity as a director, officer, employee or agent, if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. Section 145 also provides that directors, officers, employees and
agents may also be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by them in connection with a derivative suit
bought against them in their capacity as a director, if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made without
court approval if such person was adjudged liable to the corporation.
Article Tenth of the registrant's Certificate of Incorporation provides
that the registrant shall indemnify any and all persons whom it shall have power
to indemnify to the fullest extent permitted by the DGCL. Article VI of the
registrant's by-laws provides that the registrant shall indemnify authorized
representatives of the registrant to the fullest extent permitted by the DGCL.
The registrant's by-laws also permit the registrant to purchase insurance on
behalf of any such person against any liability asserted against such person and
incurred by such person in any capacity, or out of such person's status as such,
whether or not the registrant would have the power to indemnify such person
against such liability under the foregoing provision of the by-laws.
The registrant maintains a directors and officers liability insurance
policy with National Union Fire Insurance Company of Pittsburgh, PA. The policy
insures the directors and officers of the registrant against loss arising from
certain claims made against such directors or officers by reason of certain
wrongful acts.
ITEM 16. EXHIBITS.
EXHIBIT DESCRIPTION
4.1 Specimen Certificate of SmartServ's Common Stock*
4.2 Stock Purchase Agreement dated as of September 9, 2002 among SmartServ
the investors listed on schedule A (the "Investors") thereto**
4.3 Form of Warrant to the Investors**
II-1
4.4 Registration Rights Agreement dated as of September 9, 2002 among
SmartServ and the Investors**
4.5 Settlement and Amendment Agreement dated September 6, 2002, among
SmartServ and Hewlett-Packard Company**
4.6 Form of Warrant to Hewlett-Packard Company**
4.7 Form of Warrant to Steven B. Rosner***
5 Opinion of Jenkens & Gilchrist Parker Chapin LLP***
10 Amendment to Consulting Agreement between SmartServ and Stephen B.
Rosner***
23.1 Consent of Ernst & Young LLP
23.2 Consent of Jenkens & Gilchrist Parker Chapin LLP (included in Exhibit
5)***
24 Power of Attorney (included on page II-3)
- ----------
* Filed as an exhibit to the Company's registration statement on Form
SB-2 (Registration Number 333-114)
** Filed as an exhibit to the Company's Current Report on Form 8-K dated
September 9, 2002.
*** To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement, or the most
recent post-effective amendment thereof, which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, if the
total dollar value of securities offered would not exceed that which
was registered, any increase or decrease in the volume of securities
offered and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
Insofar as indemnification for liabilities arising under the securities
act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the SEC, such
indemnification is against public policy as expressed in the securities act and
is, therefore, unenforceable.
In the event that a claim for indemnification against liabilities is
asserted by a director, officer or controlling person in connection with the
securities being registered, other than the payment by the small business issuer
of expenses incurred or paid by a director, officer or controlling person of the
small business issuer in the successful defense of any action, suit or
proceeding, the small business issuer will,
II-2
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of the issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Stamford, State of
Connecticut on September 30, 2002.
SmartServ Online, Inc.
By: /s/ Thomas W. Haller
-------------------------------------
Thomas W. Haller
Senior Vice President and Chief Financial
Officer
The undersigned directors and officers of SmartServ Online, Inc. hereby
constitute and appoint Sebastian E. Cassetta, Richard D. Kerschner and Thomas W.
Haller and each of them, with full power to act without the other and with full
power of substitution and resubstitution, our true and lawful attorneys-in-fact
with full power to execute in our name and behalf in the capacities indicated
below any and all amendments (including post-effective amendments and amendments
thereto) to this Registration Statement under the Securities Act of 1933 and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission and hereby ratify and
confirm each and every act and thing that such attorneys-in-fact, or any of
them, or their substitutes, shall lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/S/ Sebastian E. Cassetta Chairman of the Board, September 30, 2002
- --------------------------------------- Chief Executive Officer,
Sebastian E. Cassetta and Director
/S/ Thomas W. Haller Senior Vice President and September 30, 2002
- --------------------------------------- Chief Financial Officer
Thomas W. Haller (Chief Financial and
Accounting Officer)
/S/ Mario F. Rossi Executive Vice President, September 30, 2002
- --------------------------------------- Chief Technology Officer
Mario F. Rossi and Director
Director September 30, 2002
- ---------------------------------------
Stephen Lawler
Director September 30, 2002
- ---------------------------------------
L. Scott Perry
II-4
/S/ Robert H. Steele Director September 30, 2002
- ---------------------------------------
Robert H. Steele
Director September 30, 2002
- ---------------------------------------
Catherine Cassel Talmadge
/S/ Charles R. Wood Director September 30, 2002
- ---------------------------------------
Charles R. Wood
II-5
EXHIBIT INDEX
EXHIBIT DESCRIPTION
4.1 Specimen Certificate of SmartServ's Common Stock*
4.2 Stock Purchase Agreement dated as of September 9, 2002 among SmartServ
the investors listed on schedule A (the "Investors") thereto**
4.3 Form of Warrant to the Investors**
4.4 Registration Rights Agreement dated as of September 9, 2002 among
SmartServ and the Investors**
4.5 Settlement and Amendment Agreement dated September 6, 2002, among
SmartServ and Hewlett-Packard Company**
4.6 Form of Warrant to Hewlett-Packard Company**
4.7 Form of Warrant to Steven B. Rosner***
5 Opinion of Jenkens & Gilchrist Parker Chapin LLP***
10 Amendment to Consulting Agreement between SmartServ and Stephen B.
Rosner***
23.1 Consent of Ernst & Young LLP
23.2 Consent of Jenkens & Gilchrist Parker Chapin LLP (included in Exhibit
5)***
24 Power of Attorney (included on page II-3)
- ----------
* Filed as an exhibit to the Company's registration statement on Form
SB-2 (Registration Number 333-114)
** Filed as an exhibit to the Company's Current Report on Form 8-K dated
September 9, 2002.
*** To be filed by amendment.
E-1