REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement"), dated as of August
31, 2005, by and between SMARTSERV ONLINE, INC., a Delaware corporation (the
"Company"), and CAMOFI MASTER LDC (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Purchaser and the Company (as
amended, modified or supplemented from time to time, the "Securities Purchase
Agreement"), and pursuant to the Notes and the Warrants referred to therein.
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Securities Purchase Agreement shall have the meanings given such
terms in the Securities Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par
value $0.01 per share.
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than 120
days following the date hereof and (ii) with respect to each additional
Registration Statement required to be filed hereunder, a date no later than
thirty (30) days following the applicable Filing Date.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Filing Date" means, with respect to (i) the initial
Registration Statement required to be filed hereunder, a date no later than
thirty (30) days following the date hereof and (ii) with respect to shares of
Common Stock issuable to the Holder as a result of adjustments to the Fixed
Conversion Price made pursuant to Section 3.4 of the Senior Subordinated
Convertible Note or Section 4 of the Warrant or otherwise, thirty (30) days
after the occurrence such event or the date of the adjustment of the Fixed
Conversion Price.
"Holder" or "Holders" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Note" has the meaning set forth in the Securities Purchase
Agreement.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means the shares of Common Stock
issued upon the conversion of the Note and issuable upon exercise of the
Warrants.
"Registration Statement" means each registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor statute.
"Securities Purchase Agreement" means the agreement between
the parties hereto calling for the issuance by the Company of Secured
Convertible Notes in the original aggregate principal amount of Five Hundred
Thousand Dollars ($500,000) plus Warrants.
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"Trading Market" means any of the NASD OTC Bulletin Board,
NASDAQ SmallCap Market, the Nasdaq National Market, the American Stock Exchange
or the New York Stock Exchange.
"Warrants" means the Common Stock purchase warrants issued
pursuant to the Securities Purchase
Agreement.
2. Registration.
(a) On or prior to the Filing Date the Company shall prepare
and file with the Commission a Registration Statement covering the
Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415. The Registration Statement shall be on
Form S-3 (except if the Company is not then eligible to register for
resale the Registrable Securities on Form S-3, in which case such
registration shall be on another appropriate form in accordance
herewith). The Company shall cause the Registration Statement to
become effective and remain effective as provided herein. The
Company shall use its reasonable commercial efforts to cause the
Registration Statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof, but in any
event no later than the Effectiveness Date. The Company shall use
its reasonable commercial efforts to keep the Registration Statement
continuously effective under the Securities Act until the date which
is the earlier date of when (i) all Registrable Securities have been
sold or (ii) all Registrable Securities may be sold immediately
without registration under the Securities Act and without volume
restrictions pursuant to Rule 144(k), as determined by the counsel
to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company's transfer agent and the
affected Holders (the "Effectiveness Period").
(b) If: (i) the Registration Statement is not filed on or
prior to the Filing Date; (ii) the Registration Statement is not
declared effective by the Commission by the Effectiveness Date;
(iii) after the Registration Statement is filed with and declared
effective by the Commission, the Registration Statement ceases to be
effective (by suspension or otherwise) as to all Registrable
Securities to which it is required to relate at any time prior to
the expiration of the Effectiveness Period (without being succeeded
immediately by an additional registration statement filed and
declared effective) for a period of time which shall exceed thirty
(30) days in the aggregate per year or more than twenty (20)
consecutive calendar days (defined as a period of 365 days
commencing on the date the Registration Statement is declared
effective); or (iv) the Common Stock is not listed or quoted, or is
suspended from trading on any Trading Market for a period of three
(3) consecutive Trading Days (provided the Company shall not have
been able to cure such trading suspension within thirty (30) days of
the notice thereof or list the Common Stock on another Trading
Market); (any such failure or breach being referred to as an
"Event," and for purposes of clause (i) or (ii) the date on which
such Event occurs, or for purposes of clause (iii) the date which
such thirty (30) day or twenty (20) consecutive day period (as the
case may be) is exceeded, or for purposes of clause (iv) the date on
which such three (3)
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Trading Day period is exceeded, being referred to as "Event Date"),
then until the applicable Event is cured, the Company shall pay to
each Holder an amount in cash, as liquidated damages and not as a
penalty, equal to 1.5% for each thirty (30) day period (prorated for
partial periods) on a daily basis of the original principal amount
of the Note. While such Event continues, such liquidated damages
shall be paid not less often than each thirty (30) days. Any unpaid
liquidated damages as of the date when an Event has been cured by
the Company shall be paid within three (3) days following the date
on which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the
Company shall cause its counsel to issue a blanket opinion in the
form attached hereto as Exhibit A, to the transfer agent stating
that the shares are subject to an effective registration statement
and can be reissued free of restrictive legend upon notice of a sale
by the Purchaser and confirmation by the Purchaser that it has
complied with the prospectus delivery requirements, provided that
the Company has not advised the transfer agent orally or in writing
that the opinion has been withdrawn. Copies of the blanket opinion
required by this Section 2(c) shall be delivered to the Purchaser
within the time frame set forth above.
3. Registration Procedures. If and whenever the Company is
required by the provisions hereof to effect the registration of any
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission the Registration
Statement with respect to such Registrable Securities, respond as
promptly as possible to any comments received from the Commission,
and use its best efforts to cause the Registration Statement to
become and remain effective for the Effectiveness Period with
respect thereto, and promptly provide to the Purchaser copies of all
filings and Commission letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by the Registration Statement and
to keep such Registration Statement effective until the expiration
of the Effectiveness Period;
(c) furnish to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein
(including each preliminary Prospectus) as the Purchaser reasonably
may request to facilitate the public sale or disposition of the
Registrable Securities covered by the Registration Statement;
(d) use its commercially reasonable efforts to register or
qualify the Purchaser's Registrable Securities covered by the
Registration Statement under the securities or "blue sky" laws of
such jurisdictions within the United States as the Purchaser may
reasonably request, provided, however, that the Company shall
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not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where
it is not so qualified or to consent to general service of process
in any such jurisdiction;
(e) list the Registrable Securities covered by the
Registration Statement with any securities exchange on which the
Common Stock of the Company is then listed;
(f) immediately notify the Purchaser at any time when a
Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company
has knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits 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;
and
(g) make available for inspection by the Purchaser and any
attorney, accountant or other agent retained by the Purchaser, all
publicly available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all
publicly available, non-confidential information reasonably
requested by the attorney, accountant or agent of the Purchaser.
4. Registration Expenses. All expenses relating to the Company's
compliance with Sections 2 and 3 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the
Company, fees and expenses (including reasonable counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees
of the NASD, transfer taxes, fees of transfer agents and registrars, fees
of, and disbursements incurred by, one counsel for the Holders (to the
extent such counsel is required due to Company's failure to meet any of
its obligations hereunder), are called "Registration Expenses". All
selling commissions applicable to the sale of Registrable Securities,
including any fees and disbursements of any special counsel to the Holders
beyond those included in Registration Expenses, are called "Selling
Expenses." The Company shall only be responsible for all Registration
Expenses.
5. Indemnification.
(a) In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Purchaser, and its
officers, directors and each other person, if any, who controls the
Purchaser within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which
the Purchaser, or such persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which
such
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Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse the Purchaser, and each such person for any
reasonable legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be
liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by or on
behalf of the Purchaser or any such person in writing specifically
for use in any such document.
(b) In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, each
Purchaser will indemnify and hold harmless the Company, and its
officers, directors and each other person, if any, who controls the
Company within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which
the Company or such persons may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact which was furnished in writing by the Purchaser to the
Company expressly for use in (and such information is contained in)
the Registration Statement under which such Registrable Securities
were registered under the Securities Act pursuant to this Agreement,
any preliminary Prospectus or final Prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company
and each such person for any reasonable legal or other expenses
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, provided, however,
that the Purchaser will be liable in any such case if and only to
the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with
information furnished in writing to the Company by or on behalf of
the Purchaser specifically for use in any such document.
Notwithstanding the provisions of this paragraph, the Purchaser
shall not be required to indemnify any person or entity in excess of
the amount of the aggregate net proceeds received by the Purchaser
in respect of Registrable Securities in connection with any such
registration under the Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim
for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an
"Indemnifying Party"), notify the Indemnifying Party in writing
thereof, but the
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omission so to notify the Indemnifying Party shall not relieve it
from any liability which it may have to such Indemnified Party other
than under this Section 5(c) and shall only relieve it from any
liability which it may have to such Indemnified Party under this
Section 5(c) if and to the extent the Indemnifying Party is
prejudiced by such omission. In case any such action shall be
brought against any Indemnified Party and it shall notify the
Indemnifying Party of the commencement thereof, the Indemnifying
Party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such Indemnified Party, and, after notice from the
Indemnifying Party to such Indemnified Party of its election so to
assume and undertake the defense thereof, the Indemnifying Party
shall not be liable to such Indemnified Party under this Section
5(c) for any legal expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof; if the
Indemnified Party retains its own counsel, then the Indemnified
Party shall pay all fees, costs and expenses of such counsel,
provided, however, that, if the defendants in any such action
include both the indemnified party and the Indemnifying Party and
the Indemnified Party shall have reasonably concluded that there may
be reasonable defenses available to it which are different from or
additional to those available to the Indemnifying Party or if the
interests of the Indemnified Party reasonably may be deemed to
conflict with the interests of the Indemnifying Party, the
Indemnified Party shall have the right to select one separate
counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the Indemnifying
Party as incurred.
(d) In order to provide for just and equitable contribution in
the event of joint liability under the Securities Act in any case in
which either (i) a Purchaser, or any officer, director or
controlling person of the Purchaser, makes a claim for
indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this
Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of
the Purchaser or such officer, director or controlling person of a
Purchaser in circumstances for which indemnification is provided
under this Section 5; then, and in each such case, the Company and
the Purchaser will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that the Purchaser
is responsible only for the portion represented by the percentage
that the public offering price of its securities offered by the
Registration Statement bears to the public offering price of all
securities offered by such Registration Statement, provided,
however, that, in any such case, (A) the Purchaser will not be
required to contribute any amount in excess of the public offering
price of all such securities offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of
the Act) will be entitled
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to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
6. Representations and Warranties.
(a) The Common Stock of the Company is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act and, except with respect
to certain matters which the Company has disclosed to the Purchaser
on Schedule 4.21 to the Securities Purchase Agreement, the Company
has timely filed all proxy statements, reports, schedules, forms,
statements and other documents required to be filed by it under the
Exchange Act. The Company has filed (i) its Annual Report on Form
10-KSB for its fiscal year ended December 31, 2004 and (ii) its
Quarterly Report on Form 10-QSB for the fiscal quarters ended March
30, 2005 and June 30, 2005 (collectively, the "SEC Reports"). Each
SEC Report was, at the time of its filing, in substantial compliance
with the requirements of its respective form and none of the SEC
Reports, nor the financial statements (and the notes thereto)
included in the SEC Reports, as of their respective filing dates,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of
the Company included in the SEC Reports comply as to form in all
material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a consistent
basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii)
in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed) and fairly present in all
material respects the financial condition, the results of operations
and the cash flows of the Company and its subsidiaries, on a
consolidated basis, as of, and for, the periods presented in each
such SEC Report.
(b) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly
made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would cause the offering
of the Securities pursuant to the Securities Purchase Agreement to
be integrated with prior offerings by the Company for purposes of
the Securities Act which would prevent the Company from selling the
Common Stock pursuant to Rule 506 under the Securities Act, or any
applicable exchange-related stockholder approval provisions, nor
will the Company or any of its affiliates or subsidiaries take any
action or steps that would cause the offering of the Securities to
be integrated with other offerings.
(c) The Warrants, the Notes and the shares of Common Stock
which the Purchaser may acquire pursuant to the Warrants and the
Note are all restricted securities under the Securities Act as of
the date of this Agreement. The Company will not issue any stop
transfer order or other order impeding the sale
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and delivery of any of the Registrable Securities at such time as
such Registrable Securities are registered for public sale or an
exemption from registration is available, except as required by
federal or state securities laws.
(d) The Company understands the nature of the Registrable
Securities issuable upon the conversion of the Notes and the
exercise of the Warrants and recognizes that the issuance of such
Registrable Securities may have a potential dilutive effect. The
Company specifically acknowledges that its obligation to issue the
Registrable Securities is binding upon the Company and enforceable
regardless of the dilution such issuance may have on the ownership
interests of other shareholders of the Company.
(e) Except for agreements made in the ordinary course of
business, there is no agreement that has not been filed with the
Commission as an exhibit to a registration statement or to a form
required to be filed by the Company under the Exchange Act, the
breach of which could reasonably be expected to have a material and
adverse effect on the Company and its subsidiaries, or would
prohibit or otherwise interfere with the ability of the Company to
enter into and perform any of its obligations under this Agreement
in any material respect.
(f) The Company will at all times have authorized and reserved
a sufficient number of shares of Common Stock for the full
conversion of the Notes and exercise of the Warrants; provided, as
of the date hereof the Company is reserving 7,492,748 shares of
Common Stock for issuance upon such conversion and exercise, and
within 60 days of the date hereof the Company shall reserve the
balance of shares of Common Sock sufficient for such full conversion
of the Notes and exercise of the Warrants.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being
entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) No Piggyback on Registrations. Except as and to the extent
specified in Schedule 7(b) hereto, neither the Company nor any of
its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in any
Registration Statement other than the Registrable Securities, and
the Company shall not after the date hereof enter into any agreement
providing any such right for inclusion of shares in the Registration
Statement to any of its security holders. Except as and to the
extent specified in Schedule 7(b) hereto, the Company has not
previously entered into any agreement granting any registration
rights with respect to any of its securities to any Person that have
not been fully satisfied.
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(c) Compliance. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities
Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement.
(d) Discontinued Disposition. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation Event
(as defined below), such Holder will forthwith discontinue
disposition of such Registrable Securities under the applicable
Registration Statement until such Holder's receipt of the copies of
the supplemented Prospectus and/or amended Registration Statement or
until it is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in
such Prospectus or Registration Statement. The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.
For purposes of this Section 7(d), a "Discontinuation Event" shall
mean (i) when the Commission notifies the Company whether there will
be a "review" of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement (the
Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders); (ii) any request
by the Commission or any other Federal or state governmental
authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the
issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement covering any or all of
the Registrable Securities or the initiation of any Proceedings for
that purpose; (iv) the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any Proceeding
for such purpose; and/or (v) the occurrence of any event or passage
of time that makes the financial statements included in such
Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any
revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or
Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(e) Piggy-Back Registrations. If at any time during the
Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company
shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the
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Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection
with stock option or other employee benefit plans, then the Company
shall send to each Holder written notice of such determination and,
if within fifteen days after receipt of such notice, any such Holder
shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable
Securities such holder requests to be registered to the extent the
Company may do so without violating registration rights of others
which exist as of the date of this Agreement, subject to customary
underwriter cutbacks applicable to all holders of registration
rights and subject to obtaining any required the consent of any
selling stockholder(s) to such inclusion under such registration
statement.
(f) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and the Holders of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of certain
Holders and that does not directly or indirectly affect the rights
of other Holders may be given by Holders of at least a majority of
the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(g) Notices. Any notice or request hereunder may be given to
the Company or the Purchaser at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a
change of address under this Section 7(g). Any notice or request
hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express or
other national overnight next day carrier (collectively, "Courier")
or telecopy (confirmed by mail). Notices and requests shall be, in
the case of those by hand delivery, deemed to have been given when
delivered to any party to whom it is addressed, in the case of those
by mail or overnight mail, deemed to have been given three (3)
business days after the date when deposited in the mail or with the
overnight mail carrier, in the case of a Courier, the next business
day following timely delivery of the package with the Courier, and,
in the case of a telecopy, when confirmed. The address for such
notices and communications shall be as follows:
If to the Company, to: SmartServ Online, Inc.
2250 Butler Pike
Plymouth Meetings, PA
Attention: Robert Pons
Facsimile: (610) 397-0846
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If to the Purchaser, to: c/o Centrecourt Asset Management
350 Third Avenue, 8th Floor
New York, New York 10017
Attention: Keith D. Wellner, Esq.
Facsimile: (646) 304-0500
with a copy to:
Katten Muchin Rosenman LLP
575 Madison Avenue
New York, NY 10022
Attention: Howard Jacobs, Esq.
Facsimile: (212) 940-8776
or such other address as may be designated in writing hereafter in accordance
with this Section 7(g) by such Person.
(h) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder. The
Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted
under the Notes and the Securities Purchase Agreement with the prior
written consent of the Company, which consent shall not be unreasonably
withheld.
(i) Execution and Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed shall be deemed
to be an original and, all of which taken together shall constitute one
and the same Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature were the original thereof.
(j) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the internal
laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and
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defense of the transactions contemplated by this Agreement shall be
commenced exclusively in the state and federal courts sitting in the City
of New York, Borough of Manhattan. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such
Proceeding is improper. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any
such Proceeding by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to
enforce any provisions of a Transaction Document, then the prevailing
party in such Proceeding shall be reimbursed by the other party for its
reasonable attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
SMARTSERV ONLINE, INC. CAMOFI MASTER LDC
By: /s/ Robert M. Pons By: /s/ Richard Smithline
----------------------------- -------------------------------
Name: Robert M. Pons Name:
Title: Chief Executive Officer Title:
Schedule A
Shares
Selling Stockholder Being Offered
------------------- -------------
EXHIBIT A
[__], 2005
[ ]
[ ]
[ ]
[ ]
Re: SmartServ Online, Inc. - Registration Statement on Form S-3
-----------------------------------------------------------
Ladies and Gentlemen:
As counsel to SmartServ Online, Inc., a Delaware corporation (the
"Company"), we have been requested to render our opinion to you in connection
with the resale by the individuals or entitles listed on Schedule A attached
hereto (the "Selling Stockholders"), of an aggregate of __________ shares (the
"Shares") of the Company's Common Stock.
A Registration Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Act"), with respect to the resale of the Shares was declared
effective by the Securities and Exchange Commission on [date]. Enclosed is the
Prospectus dated [date]. We understand that the Shares are to be offered and
sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at any
time while the registration statement remains effective, it is our opinion that
the Shares have been registered for resale under the Act and new certificates
evidencing the Shares upon their transfer or re-registration by the Selling
Stockholders may be issued without restrictive legend. We will advise you if the
registration statement is not available or effective at any point in the future.
Very truly yours,
[Company counsel]
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