EXHIBIT 10.51
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. 2004-02
COMMON STOCK PURCHASE WARRANT
For the Purchase of 50,000 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 Richard D. Kerschner (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 February 2, 2004 and expiring on and after 5:00 p.m., New
York time on February 3, 2009 (the "Exercise Period"), to subscribe for,
purchase and receive, in whole or in part, up to 50,000 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 one dollar and
sixty-five cents ($1.65) 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 and Piggy-Back Registration Rights.
2.1 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.
2.2 If at any time the Company shall determine to prepare and file with the
SEC 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 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 the stock option or other employee
benefit plans, then the Company shall send to the Holder a written notice of
such determination and, if within five business after the date of such notice,
the Holder shall so request in writing, the Company shall include in such
registration statement all or any part of the Common Stock underlying this
Warrant, to the extent such Common Stock is not then already eligible for resale
pursuant to Rule 144 under the Securities Act.
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."
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3.2 Registration of Transfers. In order to make any permitted assignment,
the Holder must deliver to the Company the assignment form attached hereto duly
executed and completed, together with this Warrant and payment of all transfer
taxes, if any, payable in connection therewith. The Company shall immediately
transfer the number of Warrants specified in the assignment form on the books of
the Company and shall execute and deliver a new warrant or warrants of like
tenor to the appropriate assignee(s) expressly evidencing the right to purchase
the number of shares of Common Stock purchasable hereunder or such portion of
such number as shall be contemplated by such assignment.
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4. New Warrants to be Issued.
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 of the number of shares of Common Stock of the Company for which such
warrant might have been
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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 the date of closing the transfer books for
the determination of the stockholders entitled to such
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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:
Richard Kerschner
800 Palisade Avenue, Unit #805
Fort Lee, NJ 07024
(ii) if to the Company, to:
SmartServ Online, Inc.
2250 Butler Pike, Suite 150
Plymouth Meeting, PA 19462
Attention: Chief Executive 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.
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.
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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 Delaware, 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 Common Pleas of Montgomery County, Pennsylvania or of the United States
of America for the Eastern District of Pennsylvania, 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.
9.0 Cashless Exercise. Notwithstanding anything to the contrary contained
herein, this Warrant may be exercised by presentation and surrender of this
Warrant to the Company at its principal executive offices with a written notice
of the holder's intention to effect a cashless exercise, including a calculation
of the number of shares of Common Stock to be issued upon such exercise in
accordance with the terms hereof (a "Cashless Exercise"). In the event of a
Cashless Exercise, in lieu of paying the Exercise Price in cash, the holder
shall surrender this Warrant (or portion thereof) for that number of shares of
Common Stock determined by multiplying the number of shares of Common Stock to
which it would otherwise be entitled by a fraction, the numerator of which shall
be the difference between the closing price per share of the Common Stock on the
trading day immediately prior to the date of exercise and the Exercise Price,
and the denominator of which shall be such closing price per share of Common
Stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer effective as of the 2nd day of February, 2004.
SMARTSERV ONLINE, INC.
By: /s/ Robert Pons
-------------------------------------
Name: Robert Pons
Title: Chief Executive Officer
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Form to be used to exercise Warrant:
SMARTSERV ONLINE, INC.
2250 Butler Pike
Suite 150
Plymouth Meeting, PA 19462
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.
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Signature
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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.
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Form to be used to assign Warrant:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within
Warrant):
FOR VALUE RECEIVED, ________________________________ does hereby sell,
assign and transfer unto __________________________ the right to purchase
____________ shares of Common Stock of SmartServ Online, Inc. (the "Company")
evidenced by the within Warrant and does hereby authorize the Company to
transfer such right on the books of the Company.
Dated:___________________
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Signature
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Signature Guaranteed
NOTICE: The signature to this form must correspond with the
name as written upon the face of the within Warrant in every particular without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm having
membership on a registered national securities exchange.
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