EXHIBIT 10.3
SmartServ Online, Inc.
Mr. Richard Faber Tec Capital, Ltd. 2nd Floor
29-30 St. Jame's Street
London, England
Dear Richard:
This letter sets forth the agreements of TecCapital, Ltd ("TEC") and
SmartServ Online, Inc. ("SSRV") with respect to that certain Stock Purchase
Agreement dated May 12, 2000 (the "Agreement"), and matters relating thereto.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Agreement.
In consideration of SSRV issuing 500,000 shares of its common stock
to TEC (the "Shares"), TEC (i) waives and releases SSRV from any and all claims
which TEC has or may have as of the date hereof for Top Up Shares as set forth
in Section 4.8 of the Agreement, and for Compensation Warrants as set forth in
Section 4.18 of the Agreement; and (ii) waives and releases SSRV from any and
all claims which TEC has or may have as of the date hereof with respect to all
of the covenants set forth in Article IV of the Agreement except for those
covenants set forth in ss. 4.19 of the Agreement which shall remain in full
force and effect and agrees that all of such covenants set forth in Article IV
except for those covenants set forth in ss. 4.19, shall be of no force and
effect and are hereby irrevocably waived from and after the date hereof.
In addition SSRV agrees to use best efforts to include the Shares
and all other shares of SSRV common stock which TEC holds as of the date hereof
(collectively, the "Registrable Shares") in SSRV's pending registration
statement on Form SB-2 and cause such registration statement to become
effective, or if the foregoing is not practicable, then to use best efforts to
file a new registration statement under the Securities Act covering the
registration of the Registrable Shares, in either case as promptly as reasonably
possible after preparation and delivery of the necessary audited and SEC
compliant financial statements with respect to SSRV's two contemplated
acquisitions (namely, KPCCD, Inc. and Telco Group, Inc. and related companies).
SSRV shall have the right to include in such registration statement shares owned
by other stockholders of SSRV and shares offered by SSRV. SSRV covenants to use
said best efforts to cause either such pending or new registration statement to
be declared effective on or before 180 days after, either, the contemplated
Telco Group acquisition is consummated or such acquisition is abandoned. Any
such registration shall be subject to the additional terms set forth on Schedule
A attached hereto.
In the event within 270 days from the date hereof both the
contemplated acquisition of the Telco Group is not consummated and a pending or
new registration statement covering all of the Registrable Shares is not
declared effective, TEC shall be entitled to the remedy, at its sole discretion,
to return the Shares to SSRV within 330 days from the date hereof, and in such
case the waivers and releases set forth above in paragraph 2 hereof shall be
null and void ab initio and TEC shall be entitled to pursue any claims against
SSRV as if such waivers and releases had never been entered into.
SSRV covenants with TEC that, from the date hereof until the
contemplated acquisition of Telco Group is consummated, SSRV will not (i)
acquire or repurchase for cash any of its outstanding securities (other than
SSRV securities which may be cancelled and/or reacquired in connection with the
termination of employment or independent contractor services), and (ii) pay or
otherwise deliver, or agree to pay or deliver, any cash to a holder of SSRV
securities in consideration of late registration penalties for failure to
register SSRV securities for resale. SSRV further covenants with TEC that the
terms and conditions of SSRV's contemplated acquisition of Telco Group have not
been materially modified or changed from these terms and conditions set forth in
the Letter of Intent dated November 17, 2004 among SSRV, Telco Group and Sam
Tawfik.
SSRV and TEC acknowledge that SSRV is hereby delivering as of the
date hereof to TEC a stock certificate covering the Shares in the name of TEC.
This letter agreement shall be governed by the laws of the State of New York,
and constitutes the entire agreement of the parties on the subject matter
hereof. This letter agreement may be executed in counterparts, each of which
shall be deemed to be an original and all of which shall be deemed one and the
same instrument.
Intending to be legally bound
SMARTSERV ONLINE, INC.
By: /s/ Paul J. Keeler
---------------------------------
Its: Chairman of the Board
Accepted and agreed to: Date: 28 January 2005
TECCAPITAL, LTD.
By: /s/ Charles R. Klotz
- ---------------------------------
Its: Chairman
Date: 28 January 2005
SCHEDULE A
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Registration of the Registrable Shares
(a) SSRV shall not be required to effect more than one registration
statement for the benefit of TEC, provided, such registration statement shall
cover all of the Registrable Shares then held by TEC. SSRV shall have the right
to determine the timing of effectiveness of the registration statement within
its reasonable discretion, provided that SSRV shall use its best efforts to have
such registration statement declared effective within the time periods set forth
in the Letter to which this Schedule A is attached.
(b) SSRV shall pay the normal and customary expenses of preparing
and filing the registration statement. TEC shall be responsible for the expenses
of its own legal counsel and shall pay all selling expenses incurred in
connection with the registration and sale of the Registrable Shares. TEC shall
furnish to SSRV such information as may be required regarding TEC, the
Registrable Shares and its method of distribution pursuant to the Securities Act
of 1933, as amended, and the rules and regulations thereunder (the "Act"), which
information will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(c) Once the registration statement is declared effective, SSRV
agrees to maintain the effective status of such registration statement for a
period of one year. SSRV shall prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus included in such registration statement as may be necessary to
comply with the provisions of the Act with regard to the disposition of the
securities covered by such registration statement for the period set forth in
the preceding sentence. SSRV shall arrange for furnishing to TEC such number of
copies of the prospectus, including a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as may be reasonably
requested in order to facilitate the disposition of the Registrable Shares.
(d) Notwithstanding anything herein to the contrary, if SSRV shall
furnish to TEC a certificate signed by the chief executive officer of SSRV
stating that SSRV has made the good faith determination that it is necessary to
suspend TEC's use of such registration statement (and the prospectus relating
thereto) for purposes of effecting offers and sales of the Registrable Shares
pursuant thereto, then TEC's right to use such registration statement (and the
prospectus relating thereto) for such purposes shall be suspended for a period
("Suspension Period") of not more than sixty (60) days after delivery by SSRV of
the certificate referenced in this subsection (d). SSRV shall endeavor to
provide to TEC not less than twenty-four (24) hours prior written notice of any
Suspension Period. During the Suspension Period, TEC shall not offer or sell any
of the Registrable Shares pursuant to or in reliance upon such registration
statement (or the prospectus relating thereto). SSRV agrees that, as promptly as
practicable, SSRV will provide to TEC, revised prospectuses, if required, and
will notify TEC of its ability to commence effecting offers and sales of the
Registrable Shares pursuant to or in reliance upon such registration period.
Notwithstanding the foregoing, SSRV shall not be entitled to Suspension Periods
totaling more than one hundred twenty (120) days in the aggregate in any twelve
month period.