-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VZhMxZMdbM4GKnFKbr7zb/QwOrH+J/DoeYheZ3wlulvva+oG2o3GQLB6VaGpOjp6 Qsv9PzpHR+YnIEMC8tlYpw== /in/edgar/work/0000910680-00-000708/0000910680-00-000708.txt : 20001016 0000910680-00-000708.hdr.sgml : 20001016 ACCESSION NUMBER: 0000910680-00-000708 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20001013 EFFECTIVENESS DATE: 20001013 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SMARTSERV ONLINE INC CENTRAL INDEX KEY: 0001005698 STANDARD INDUSTRIAL CLASSIFICATION: [7374 ] IRS NUMBER: 133750708 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-47936 FILM NUMBER: 739940 BUSINESS ADDRESS: STREET 1: METRO CENTER STREET 2: ONE STATION PLACE CITY: STAMFORD STATE: CT ZIP: 06902 BUSINESS PHONE: 2033535950 MAIL ADDRESS: STREET 1: ONE STATION PLACE CITY: STAMFORD STATE: CT ZIP: 06902 S-8 1 0001.txt FORM S-8 OF SMARTSERV ONLINE, INC. As filed with the Securities and Exchange Commission on October 13, 2000 Registration No. 333-_______ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- SMARTSERV ONLINE, INC. (Exact name of registrant as specified in its charter) DELAWARE 13-3750708 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) ONE STATION PLACE, STAMFORD, CT 06902 (Address of Principal Executive Offices) NON-QUALIFIED STOCK OPTION CONTRACT BETWEEN THE REGISTRANT AND ALAN G. BOZIAN 1999 STOCK OPTION PLAN (Full title of the plans) RICHARD KERSCHNER, ESQ. VICE PRESIDENT, GENERAL COUNSEL SMARTSERV ONLINE, INC. ONE STATION PLACE, STAMFORD, CT 06902 (203) 353-5950 (Name, address and telephone number, including area code, of agent for service) with a copy to: Michael J. Shef, Esq. Parker Chapin LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174 (212) 704-6000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE ============================================ ================= ====================== ==================== =================== Proposed Proposed Title of each class of Securities Amount to Maximum Maximum Amount of to be Registered be Registered Offering Price Aggregate Registration (1) Per Share Offering Price Fee - -------------------------------------------- ----------------- ---------------------- -------------------- ------------------- Common Stock, $.01 par value per share 175,000 $ 49.5000 (2) $ 8,662,500 $ 2,287.00 - -------------------------------------------- ----------------- ---------------------- -------------------- ------------------- Common Stock, $.01 par value per share 400,000 $ .9375 (3) $ 375,000 $ 99.00 ============================================ ================= ====================== ==================== ===================
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all additional securities resulting from antidilution adjustments. (2) Based on the exercise price of $49.50 per share. (3) Based on a weighted average exercise price of $.9375 per share. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the registrant with the Securities and Exchange Commission (Commission File No.0-28008) pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated herein by reference: (a) The registrant's Annual Report on Form 10-KSB for the year ended June 30, 2000; and (b) The description of the registrant's common stock contained in the registrant's registration statement on Form 8-A filed on March 19, 1996, including any amendment or report filed for the purpose of updating such description. All documents filed subsequent to the date of this registration statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. ITEM 4. DESCRIPTION OF SECURITIES. Not required, since the registrant's common stock is registered under Section 12 of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. II-1 ITEM 6. 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 provide 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 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS.
Exhibit Number Description - ------ ----------- 5.1 Opinion of Parker Chapin LLP, as to the legality of the common stock being offered. 23.1 Consent of Parker Chapin LLP (included in their opinion filed as Exhibit 5.1). 23.2 Consent of Ernst & Young LLP. 24.1 Power of attorney of certain officers and directors of the registrant (contained in the signature page). 99.1 Non-Qualified Stock Option Contract between the registrant and Alan G. Bozian. 99.2 1999 Stock Option Plan.* 99.3 Form of Non-Qualified Stock Option Contract under the 1999 Stock Option Plan.
* Filed as an exhibit to the Company's registration statement on Form SB-2 (Registration No. 333-43258.) II-2 ITEM 9. 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, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference 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. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions described in Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission 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 such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant 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, the registrant 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 II-3 public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stamford, State of Connecticut, on the ____ day of October, 2000. SmartServ Online, Inc. By:/s/ Sebastian E. Cassetta ---------------------------------- Sebastian E. Cassetta Chairman of the Board, Chief Executive Officer and Secretary POWER OF ATTORNEY The undersigned directors and officers of SmartServ Online, Inc. hereby constitute and appoint Sebastian E. Cassetta, Mario F. Rossi, 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 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, this registration statement 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, October 13, 2000 - --------------------------------------- Chief Executive Officer Sebastian E. Cassetta and Director /s/ Mario F. Rossi Senior Vice President and October 13, 2000 - --------------------------------------- Director Mario F. Rossi /s/ Alan G. Bozian Senior Vice President, October 13, 2000 - --------------------------------------- Chief Financial Officer Alan G. Bozian /s/ Thomas W. Haller Vice President and Treasurer October 13, 2000 - --------------------------------------- (Chief Accounting Officer) Thomas W. Haller
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Director October __, 2000 - --------------------------------------- Claudio Guazzoni /s/ Charles R. Klotz Director October 13, 2000 - --------------------------------------- Charles R. Klotz /s/ Stephen Lawler Director October 13, 2000 - --------------------------------------- Stephen Lawler /s/ Robert H. Steele Director October 13, 2000 - --------------------------------------- Robert H. Steele /s/ L. Scott Perry Director October 13, 2000 - --------------------------------------- L. Scott Perry /s/ Catherine Cassel Talmadge Director October 13, 2000 - --------------------------------------- Catherine Cassel Talmadge /s/ Charles R. Wood Director October 13, 2000 - --------------------------------------- Charles R. Wood
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EXHIBIT INDEX Exhibit Number Description - ------ ----------- 5.1 Opinion of Parker Chapin LLP, as to the legality of the common stock being offered. 23.1 Consent of Parker Chapin LLP (included in their opinion filed as Exhibit 5.1). 23.2 Consent of Ernst & Young LLP. 24.1 Power of attorney of certain officers and directors of the registrant (contained in the signature page). 99.1 Non-Qualified Stock Option Contract between the registrant and Alan G. Bozian. 99.2 1999 Stock Option Plan.* 99.3 Form of Non-Qualified Stock Option Contract under the 1999 Stock Option Plan.
* Filed as an exhibit to the Company's registration statement on Form SB-2 (Registration No. 333-43258.) EX-5.1 2 0002.txt OPINION OF PARKER CHAPIN LLP EXHIBIT 5.1 September 22,2000 SmartServ Online, Inc. One Station Place Stamford, CT 06902 Gentlemen: We have acted as counsel for SmartServ Online, Inc., a Delaware corporation (the "Company") in connection with its Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") relating to the registration of 175,000 shares of Common Stock, par value $ .01 per share (the "Shares") issuable upon the exercise of options granted under the Non-Qualified Stock Option Contract between the registrant and Alan G. Bozian (the "Contract") and 400,000 Shares issuable upon the exercise of options granted under the 1999 Stock Option Plan (the "Plan" and, together with the Contract, the "Stock Option Documents"). In connection with the foregoing, we have examined, among other things, the Registration Statement and originals or copies, satisfactory to us, of all such corporate records and of all such agreements, certificates and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original documents of documents submitted to us as copies. As to any facts material to such opinion, we have, to the extent that relevant facts were not independently established by us, relied on certificates of public officials and certificates, oaths and declarations of officers or other representatives of the Company. Based upon and subject to the foregoing, we are of the opinion that the Shares to be issued pursuant to the exercise of the options granted under the Stock Option Documents will be, when issued pursuant to the Stock Option Documents, validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended (the "Act"), the rules and regulations of the Commission promulgated thereunder or Item 509 of Regulation S-B promulgated under the Act. Very truly yours, /s/Parker Chapin LLP Parker Chapin LLP EX-23.2 3 0003.txt CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333 - _____) pertaining to the Non - Qualified Option Contract of Alan G. Bozian and the 1999 Stock Option Plan of SmartServ Online, Inc. of our report dated August 15, 2000, except for footnote 13 as to which the date is September 28, 2000 with respect to the financial statements of SmartServ Online, Inc. included in its Annual Report (Form 10 - KSB) for the year ended June 30, 2000. /s/ Ernst & Young LLP Stamford, Connecticut October 10, 2000 EX-99.1 4 0004.txt NON-QUALIFIED STOCK OPTION CONTRACT SMARTSERV ONLINE, INC. NONQUALIFIED STOCK OPTION CONTRACT ---------------------------------- THIS NONQUALIFIED STOCK OPTION CONTRACT (this "Contract") entered into as of May 29, 2000 between SMARTSERV ONLINE, INC., a Delaware corporation (the "Company"), and ALAN G. BOZIAN (the "Optionee"). WITNESSETH: 1. The Company, in accordance with the approval of the Board of Directors and subject to the Optionee being in the employ of the Company as of the Effective Date (as defined in the Employment Agreement, dated May 29, 2000, between the Company and the Optionee), grants to the Optionee, as of the Effective Date, an option to purchase an aggregate of 175,000 shares of the Common Stock, $.01 par value per share, of the Company ("Common Stock") at an exercise price of $49.50 per share. This option is not an incentive stock option within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. The term of this option shall be 10 years from the Effective Date, subject to earlier termination as may be provided in this Contract. This option shall vest and become exercisable at the times and in the amounts specified on Exhibit A attached hereto. The right to purchase shares of Common Stock under this option shall be cumulative, so that if the full number of shares purchasable in a period shall not be purchased, the balance may be purchased at any time or from time to time thereafter, but not after the expiration of the option. Notwithstanding any of the foregoing, in no event may a fraction of a share of Common Stock be purchased or issued under this option. 3. This option (or any part or installment thereof) shall be exercised by giving written notice to the Company at its then principal office, presently Metro Center, One Station Place, Stamford, Connecticut 06902 Attn: Chief Executive Officer, stating that the Optionee is exercising the option hereunder, specifying the number of shares being purchased and accompanied by payment in full of the aggregate purchase price therefor (a) in cash or by certified check, (b) with previously acquired shares of Common Stock which have been held by the Optionee for at least six months (the fair market value of such shares to be determined as described below), or (c) any combination of the foregoing. The Company shall not be required to issue any shares of Common Stock pursuant to any such option until all required payments, including any required withholding, have been made. The Board of Directors may, in its sole discretion, permit payment of the exercise price of the option (or any part or installment thereof) by delivery by the Optionee of a properly executed notice, together with a copy of his irrevocable instructions to a broker acceptable to the Board of Directors to deliver promptly to the Company the amount of sale or loan proceeds sufficient to pay such exercise price. In connection therewith, the Company may enter into agreements for coordinated procedures with one or more brokerage firms. The Optionee shall not have the rights of a stockholder with respect to the shares of Common Stock to be received upon the exercise of the option (or any part or installment thereof) until the date of issuance of a stock certificate to him for such shares; provided, however, that until such stock certificate is issued, if the Optionee uses previously acquired shares of Common Stock in payment of an option exercise price he shall continue to have the rights of a stockholder with respect to such previously acquired shares. The fair market value of a share of Common Stock on any day shall be (a) if the principal market for the Common Stock is a national securities exchange, the average of the highest and lowest sales prices per share of Common Stock on such day as reported by such exchange or on a composite tape reflecting transactions on such exchange, (b) if the principal market for the Common Stock is not a national securities exchange and the Common Stock is quoted on The Nasdaq Stock Market ("Nasdaq"), and (i) if actual sales price information is available with respect to the Common Stock, the average of the highest and lowest sales prices per share of Common Stock on such day on Nasdaq, or (ii) if such information is not available, the average of the highest bid and lowest asked prices per share of Common Stock on such day on Nasdaq, or (c) if the principal market for the Common Stock is not a national securities exchange and the Common Stock is not quoted on Nasdaq, the average of the highest bid and lowest asked prices per share of Common Stock on such day as reported on the OTC Bulletin Board Service or by National Quotation Bureau, Incorporated or a comparable service; provided, however, that if clauses (a), (b) and (c) of this Paragraph are all inapplicable, or if no trades have been made or no quotes are available for such day, the fair market value of the Common Stock shall be determined by the Board of Directors by any method consistent with applicable regulations adopted by the Treasury Department relating to stock options. 4. The Company shall have the right to withhold (a) cash, (b) shares of Common Stock to be issued to the Optionee having an aggregate fair market value (determined in accordance with Section 3 above) on the exercise date or (c) any combination thereof, in an amount equal to the minimum amount required to be withheld in order to satisfy any federal, state and local tax withholding requirements. Alternatively, the Company may require the Optionee to pay the Company such amount in cash or certified check promptly upon demand. The Company shall pay all issuance taxes with respect to the issuance of shares of Common Stock upon the exercise of this option (or any part or installment thereof), as well as all fees and expenses incurred by the Company in connection with such issuance. 5. Notwithstanding the foregoing, this option shall not be exercisable by the Optionee unless (a) a Registration Statement under the Securities Act of 1933, as amended (the "Securities Act") with respect to the shares of Common Stock to be received upon the exercise of this option shall be effective and current at the time of exercise or (b) there is an exemption from registration under the Securities Act for the issuance of the shares of Common Stock upon such exercise. The Optionee hereby represents and warrants to the Company that, unless such a Registration Statement is effective and current at the time of exercise of this option, the shares of Common Stock to be issued upon the exercise of this option will be acquired by the Optionee for his own account, for investment only and not with a view to the resale or distribution thereof. In any event, the Optionee shall notify the Company of any proposed resale of the shares of Common Stock issued to him upon exercise of this option. Any subsequent resale or distribution of shares of Common Stock by the Optionee shall be made only pursuant to (x) a Registration Statement under the Securities Act which is effective and current with respect to the sale of shares of Common Stock being sold, or (y) a specific exemption from the registration requirements of the Securities Act, but in claiming such exemption, the Optionee shall, prior to any offer of sale or sale of such shares of Common Stock, provide the Company (unless waived by the Company) with a favorable written opinion of counsel, in form, substance and scope satisfactory to the Company, as to the applicability of such exemption to the proposed sale or distribution. Such representations and warranties shall also be deemed to be made by the Optionee upon each exercise of this option. Nothing herein shall be construed as requiring the Company to register the shares subject to this option under the Securities Act. 6. Notwithstanding anything herein to the contrary, if at any time the Board of Directors shall determine, in its sole discretion, that the listing or qualification of the shares of Common Stock subject to this option on any securities exchange or under any applicable law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition to, or in connection with, the granting of an option or the issuance of shares of Common Stock hereunder, this option may not be exercised in whole or in part unless such listing, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. 7. The Company may affix appropriate legends upon the certificates for shares of Common Stock issued upon exercise of this option and may issue such "stop transfer" instructions to its transfer agent in respect of such shares as it determines, in its discretion, to be necessary or appropriate to (a) prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act, or (b) implement the provisions of this Contract or any other agreement between the Company and the Optionee with respect to such shares of Common Stock. -2- 8. If the Optionee's employment relationship with the Company, its Parent and Subsidiaries has terminated for any reason (other than as a result of the death or Disability of the Optionee), the Optionee may exercise this option, to the extent exercisable on the date of such termination, at any time within three months after the date of termination, but not thereafter and in no event after the date this option would otherwise have expired; provided, however, that if such relationship is terminated either (a) for cause or (b) without the consent of the Company, this option shall terminate immediately. For the purposes of this Contract, an employment relationship shall be deemed to exist between an individual and a corporation if, at the time of the determination, the individual was an employee of such corporation for purposes of Section 422(a) of the Code. As a result, an individual on military, sick leave or other bona fide leave of absence shall continue to be considered an employee for purposes of this Contract during such leave if the period of the leave does not exceed 90 days, or, if longer, so long as the individual's right to reemployment with the Company (or a related corporation) is guaranteed either by statute or by contract. If the period of leave exceeds 90 days and the individual's right to re-employment is not guaranteed by statute or by contract, the employment relationship shall be deemed to have terminated on the 91st day of such leave. This option shall not be affected by any change in the status of the Optionee so long as the Optionee continues to be an employee of, or a consultant to, the Company, or any of the Subsidiaries or a Parent (regardless of having changed from one to the other or having been transferred from one corporation to another). Nothing herein shall confer upon the Optionee any right to continue in the employ of the Company, any Parent or any of its Subsidiaries, or interfere in any way with any right of the Company, any Parent or its Subsidiaries to terminate such employment at any time for any reason whatsoever without liability to the Company, any Parent or any of its Subsidiaries. 9. If the Optionee dies (a) while he is an employee of, or consultant to, the Company, any of its Subsidiaries or a Parent, (b) within three months after the termination of such relationship (unless such termination was for cause or without the consent of the Company) or (c) within one year following the termination of such relationship by reason of his Disability, this option may be exercised, to the extent exercisable on the date of his death, by his Legal Representative at any time within one year after his death, but not thereafter and in no event after the date the option would otherwise have expired. If the Optionee's relationship as an employee of, or consultant to, the Company, its Parent and Subsidiaries has terminated by reason of his Disability, the Optionee may exercise this option, to the extent exercisable upon the effective date of such termination, at any time within one year after such date, but not thereafter and in no event after the date the option would otherwise have expired. 10. Notwithstanding any other provision of this Contract, in the event of a stock dividend, recapitalization, merger in which the Company is the surviving corporation, spin-off, split-up, combination or exchange of shares or the like which results in a change in the number or kind of shares of Common Stock which is outstanding immediately prior to such event, the aggregate number and kind of shares subject to this option, to the extent not already exercised, and the exercise price thereof, shall be appropriately adjusted by the Board of Directors, whose determination shall be conclusive and binding on all parties. Such adjustment may provide for the elimination of fractional shares which might otherwise be subject to this option without payment therefor. 11. This option shall become immediately exercisable in full upon the occurrence of a "Change in Control". For this purpose, a Change in Control shall be deemed to have occurred if (a) there has occurred a change in control as the term "control" is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Act"); (b) when any "person" (as such term is defined in Sections 3(a)(9) and 13(d)(3) of the Act), except for an employee stock ownership trust (or any of the trustees thereof), becomes a beneficial owner, directly or indirectly, of securities of the Company representing 15% or more of the Company's then outstanding securities having the right to vote on the election of directors, unless the transaction in which such person becomes such a beneficial owner was approved by a vote of at least two-thirds of the directors then still in office who were directors before such transaction was consummated; (c) during any period of not more than two consecutive years, individuals who at the beginning of such period constitute the Board of Directors, and any new director whose election by the -3- Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who were either directors at the beginning of the period or whose election or nomination for election was previously approved, cease for any reason to constitute at least 51% of the entire Board of Directors; (d) when a majority of the directors elected at any annual or special meeting of stockholders (or by written consent in lieu of a meeting) are not individuals nominated by the Company's incumbent Board of Directors; (e) if the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the holders of voting securities of the Company outstanding immediately prior thereto being the holders of at least 80% of the voting securities of the surviving entity outstanding immediately after such merger or consolidation; (f) if the stockholders of the Company approve a plan of complete liquidation of the Company; or (g) if the stockholders of the Company approve an agreement for the sale or disposition of all or substantially all of the Company's assets. 12. The Optionee represents and agrees that he will comply with all applicable laws relating to the grant and exercise of this option and the disposition of the shares of Common Stock acquired upon exercise of the option, including without limitation, federal and state securities and "blue sky" laws. 13. This option (or any part or installment thereof) is not transferable by the Optionee otherwise than by will or the laws of descent and distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee or the Optionee's Legal Representatives. Except to the extent provided above, this option (or any part or installment hereof) may not be assigned, transferred, pledged, hypothecated or disposed of in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process, and any such attempted assignment, transfer, pledge, hypothecation or disposition shall be null and void ab initio and of no force or effect. 14. This Contract shall be binding upon and inure to the benefit of any successor or assign of the Company and to any heir, distributee or Legal Representative entitled to the Optionee's rights hereunder. 15. This Contract shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to the conflicts of law rules thereof. This Contract shall not be construed or interpreted with any presumption against the Company by reason of the Company causing this Contract to be drafted. Whenever from the context it appears appropriate, any term stated in either the singular or plural shall include the singular and plural, and any term stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter. 16. The invalidity, illegality or unenforceability of any provision herein shall not affect the validity, legality or enforceability of any other provision. 17. For purposes of this Contract, the following terms shall be defined as set forth below: (a) Disability. The term "Disability" shall mean a permanent and total disability within the meaning of Section 22(e)(3) of the Code. (b) Legal Representative. The term "Legal Representative" shall mean the executor, administrator or other person who at the time is entitled by law to exercise the rights of the Optionee, if deceased or incapacitated, with respect to the option granted under this Contract. (c) Parent. The term "Parent" shall have the same definition as "parent corporation" in Section 424(e) of the Code. (d) Subsidiary. The term "Subsidiary" shall have the same definition as "subsidiary corporation" in Section 424(f) of the Code. -4- IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the day and year first above written. SMARTSERV ONLINE, INC. By: ------------------------------------ Name: ------------------------------------ Title: ------------------------------------ ------------------------------------ Alan G. Bozian, Optionee 50 E. 89th Street ------------------------------------ New York, NY 10128 ------------------------------------ Address -5-
EXHIBIT A - VESTING SCHEDULE - ------------------------------------------------------------ --------------------------------------------------------- DATE TOTAL AMOUNT VESTED* - ------------------------------------------------------------ --------------------------------------------------------- May 29, 2000 [the Effective Date] 7,291 - ------------------------------------------------------------ --------------------------------------------------------- June 29, 2000 14,582 - ------------------------------------------------------------ --------------------------------------------------------- July 29, 2000 21,873 - ------------------------------------------------------------ --------------------------------------------------------- August 29, 2000 29,164 - ------------------------------------------------------------ --------------------------------------------------------- September 29, 2000 36,455 - ------------------------------------------------------------ --------------------------------------------------------- October 29, 2000 43,746 - ------------------------------------------------------------ --------------------------------------------------------- November 29, 2000 51,037 - ------------------------------------------------------------ --------------------------------------------------------- December 29, 2000 58,328 - ------------------------------------------------------------ --------------------------------------------------------- January 29, 2001 65,619 - ------------------------------------------------------------ --------------------------------------------------------- February 28, 2001 72,910 - ------------------------------------------------------------ --------------------------------------------------------- March 29, 2001 80,201 - ------------------------------------------------------------ --------------------------------------------------------- April 29, 2001 87,492 - ------------------------------------------------------------ --------------------------------------------------------- May 29, 2001 94,783 - ------------------------------------------------------------ --------------------------------------------------------- June 29, 2001 102,074 - ------------------------------------------------------------ --------------------------------------------------------- July 29, 2001 109,365 - ------------------------------------------------------------ --------------------------------------------------------- August 29, 2001 116,656 - ------------------------------------------------------------ --------------------------------------------------------- September 29, 2001 123,947 - ----------------------------------------------------------- --------------------------------------------------------- October 29, 2001 131,238 - ------------------------------------------------------------ --------------------------------------------------------- November 29, 2001 138,529 - ------------------------------------------------------------ --------------------------------------------------------- December 29, 2001 145,820 - ------------------------------------------------------------ --------------------------------------------------------- January 29, 2002 153,111 - ------------------------------------------------------------ --------------------------------------------------------- February 29, 2002 160,402 - ------------------------------------------------------------ --------------------------------------------------------- March 29, 2002 167,693 - ------------------------------------------------------------ --------------------------------------------------------- April 29, 2002 175,000 - ------------------------------------------------------------ ---------------------------------------------------------
*Number of cumulative shares of Common Stock Optionee may purchase pursuant to the option. EX-99.2 5 0005.txt FORM OF NON-QUALIFIED STOCK OPTION CONTRACT SMARTSERV ONLINE, INC. 1999 STOCK OPTION PLAN NONQUALIFIED STOCK OPTION CONTRACT ---------------------------------- THIS NONQUALIFIED STOCK OPTION CONTRACT entered into as of October 13, 1999 between SMARTSERV ONLINE, INC., a Delaware corporation (the "Company"), and ____________ (the "Optionee"). W I T N E S S E T H: - - - - - - - - - - 1. The Company, in accordance with the allotment made by the committee of the Company's Board of Directors (the "Committee") and subject to the terms and conditions of the 1999 Stock Option Plan of the Company (the "Plan"), grants to the Optionee an option to purchase an aggregate of _______ shares of the Common Stock, $.01 par value per share, of the Company ("Common Stock") at an exercise price of $______ per share, being at least equal to the fair market value of such shares of Common Stock on the date hereof. This option is not an incentive stock option within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. The term of this option shall be ____ years from the date hereof, subject to earlier termination as provided in the Plan. However, this option shall not be exercisable until the first anniversary of the date hereof, at which time it shall become exercisable as to _____ of the total number of shares of Common Stock subject hereto. Thereafter, on each ____ successive anniversary dates, an additional _____% and _____% of the total number of shares of Common Stock subject hereto, respectively, shall become exercisable. The right to purchase shares of Common Stock under this option shall be cumulative, so that if the full number of shares purchasable in a period shall not be purchased, the balance may be purchased at any time or from time to time thereafter, but not after the expiration of the option. Notwithstanding any of the foregoing, in no event may a fraction of a share of Common Stock be purchased under this option. 3. This option shall be exercised by giving written notice to the Company at its then principal office, presently Metro Center, One Station Place, Stamford, Connecticut 06902 Attn: Chief Financial Officer, stating that the Optionee is exercising the option hereunder, specifying the number of shares being purchased and accompanied by payment in full of the aggregate purchase price therefor (a) in cash or by certified check, (b) with previously acquired shares of Common Stock which have been held by the Optionee for at least six months, or (c) a combination of the foregoing. 4. The Company may withhold cash and/or shares of Common Stock to be issued to the Optionee in the amount which the Company determines is necessary to satisfy its obligation to withhold taxes or other amounts incurred by reason of the grant or exercise of this option or the disposition of the underlying shares of Common Stock. Alternatively, the Company may require the Optionee to pay the Company such amount in cash promptly upon demand. 1 5. Notwithstanding the foregoing, this option shall not be exercisable by the Optionee unless (a) a Registration Statement under the Securities Act of 1933, as amended (the "Securities Act") with respect to the shares of Common Stock to be received upon the exercise of this option shall be effective and current at the time of exercise or (b) there is an exemption from registration under the Securities Act for the issuance of the shares of Common Stock upon such exercise. The Optionee hereby represents and warrants to the Company that, unless such a Registration Statement is effective and current at the time of exercise of this option, the shares of Common Stock to be issued upon the exercise of this option will be acquired by the Optionee for his own account, for investment only and not with a view to the resale or distribution thereof. In any event, the Optionee shall notify the Company of any proposed resale of the shares of Common Stock issued to him upon exercise of this option. Any subsequent resale or distribution of shares of Common Stock by the Optionee shall be made only pursuant to (x) a Registration Statement under the Securities Act which is effective and current with respect to the sale of shares of Common Stock being sold, or (y) a specific exemption from the registration requirements of the Securities Act, but in claiming such exemption, the Optionee shall, prior to any offer of sale or sale of such shares of Common Stock, provide the Company (unless waived by the Company) with a favorable written opinion of counsel, in form and substance satisfactory to the Company, as to the applicability of such exemption to the proposed sale or distribution. Such representations and warranties shall also be deemed to be made by the Optionee upon each exercise of this option. Nothing herein shall be construed as requiring the Company to register the shares subject to this option under the Securities Act. 6. Notwithstanding anything herein to the contrary, if at any time the Committee shall determine, in its discretion, that the listing or qualification of the shares of Common Stock subject to this option on any securities exchange or under any applicable law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition to, or in connection with, the granting of an option or the issuance of shares of Common Stock hereunder, this option may not be exercised in whole or in part unless such listing, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee. 7. The Company may affix appropriate legends upon the certificates for shares of Common Stock issued upon exercise of this option and may issue such "stop transfer" instructions to its transfer agent in respect of such shares as it determines, in its discretion, to be necessary or appropriate to (a) prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act, or (b) implement the provisions of the Plan or this Contract or any other agreement between the Company and the Optionee with respect to such shares of Common Stock. 8. Nothing in the Plan or herein shall confer upon the Optionee any right to continue in the employ of the Company, any Parent or any of its Subsidiaries, or interfere in any way with any right of the Company, any Parent or its Subsidiaries to terminate such employment at any time for any reason whatsoever without liability to the Company, any Parent or any of its Subsidiaries. 2 9. The Company and the Optionee agree that they will both be subject to and bound by all of the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof. Any capitalized term not defined herein shall have the meaning ascribed to it in the Plan. In the event of a conflict between the terms of this Contract and the terms of the Plan, the terms of the Plan shall govern. 10. The Optionee represents and agrees that he will comply with all applicable laws relating to the Plan and the grant and exercise of this option and the disposition of the shares of Common Stock acquired upon exercise of the option, including without limitation, federal and state securities and "blue sky" laws. 11. This option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee or the Optionee's legal representatives. 12. This Contract shall be binding upon and inure to the benefit of any successor or assign of the Company and to any heir, distributee, executor, administrator or legal representative entitled to the Optionee's rights hereunder. 13. This Contract shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to the conflicts of law rules thereof. 14. The invalidity, illegality or unenforceability of any provision herein shall not affect the validity, legality or enforceability of any other provision. 15. The Optionee agrees that the Company may amend the Plan and the options granted to the Optionee under the Plan, subject to the limitations contained in the Plan. IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the day and year first above written. SMARTSERV ONLINE, INC. By: ------------------------------------ Chief Financial Officer ------------------------------------ , Optionee ------------------------------------ ------------------------------------ Address 3 -----END PRIVACY-ENHANCED MESSAGE-----