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 xx,xxx Shares of Common Stock
of
SMARTSERV ONLINE, INC.
(a Delaware corporation)
1. Warrant.
-------
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 [ ], 2002 and expiring on and after 5:00
p.m., New York time on [ ], 2005 (the "Exercise Period"), to subscribe for,
purchase and receive, in whole or in part, up to xx,xxx shares of Common Stock,
$.01 par value (the "Common Stock"), of the Company. This Warrant is initially
exercisable as to each share of Common Stock covered thereby at [ ] dollars and
[ ] cents ($x.xx) 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.
--------
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.
---------------------------------------------------
3.1 Restrictions on Transfer. The registered Holder of this Warrant,
by acceptance hereof, agrees that prior to any proposed transfer of this Warrant
or any securities purchased upon exercise of this Warrant, if such transfer is
not made pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the "Act"), the 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 Warrant or the securities purchased
upon exercise of this Warrant may be transferred without registration
under the Act;
(ii) an agreement by the proposed transferee to the placement of the
restrictive investment legend set forth below on the Warrant or the
securities to be received upon exercise of the Warrant;
(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 this Warrant; 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.
-2-
4. New Warrants to be Issued.
-------------------------
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 warrant 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.
------------------------------------------------------
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), in lieu of this Warrant, 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 number of shares of stock and other
securities and property receivable upon such consolidation or merger, by a
holder
-3-
of the number of shares of Common Stock of the Company for which such warrant
might have been exercised immediately prior to such consolidation, merger, sale
or transfer. Each such supplemental warrant 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 the Holder 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.
-----------
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.
---------------------------
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 give written notice of such event at least
fifteen (15) days prior to the date fixed as a record date or
-4-
the date of closing the transfer books for the determination of the stockholders
entitled to such dividend, distribution, 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 Financial Officer.
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:
[ ]
(ii) if to the Company, to:
SmartServ Online, Inc.
Metro Center
One Station Place
Stamford, CT 06902
Attention: Chief Financial Officer
Either the Holder or the Company may change its address by notice given pursuant
to this Section 7.4.
8. Miscellaneous.
-------------
8.1 Amendments. The Company and the Holder may from time to time
supplement or amend this Warrant.
-5-
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, and legal representatives, 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 New York, 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 County of New York in the State of New York or of the United States of
America for the Southern District of New York, 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. 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 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.
-6-
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer on the ______th day of __________, 2002.
SMARTSERV ONLINE, INC.
By:
------------------------------------
Name: Thomas W. Haller
Title: Chief Financial Officer
-7-
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.
The undersigned represents that it is an accredited investor within the meaning
of Regulation D of the General Rules and Regulations under the Securities Act of
1933, as amended. Please issue the shares as to which this Warrant is exercised
in accordance with the instructions given below.
----------------------------------
Signature
----------------------------------
Signature Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
----------------------------------------------------------------------------
(Print in Block Letters)
Address
-------------------------------------------------------------------------
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.
-8-
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:___________________
----------------------------------
Signature
----------------------------------
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.
-9-