EX-5 3 d883027-1.txt J&GPC OPINION EXHIBIT 5 Jenkens & Gilchrist Parker Chapin LLP AUSTIN, TEXAS THE CHRYSLER BUILDING (512) 499-3800 405 LEXINGTON AVENUE CHICAGO, ILLINOIS NEW YORK, NEW YORK 10174 (312) 425-3900 DALLAS, TEXAS (212) 704-6000 (214) 855-4500 FACSIMILE (212) 704-6288 HOUSTON, TEXAS (713) 951-3300 www.jenkens.com LOS ANGELES, CALIFORNIA (310) 820-8800 SAN ANTONIO, TEXAS (210) 246-5000 WASHINGTON, D.C. (202) 326-1500 February 11, 2003 SmartServ Online, Inc. Metro Center One Station Place Stamford, CT 06902 Gentlemen: We have acted as counsel to SmartServ Online, Inc., a Delaware corporation (the "COMPANY"), in connection with the Company's filing of a Registration Statement on Form S-3 (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "COMMISSION") under the Securities Act of 1933, as amended (the "ACT"), relating to the resale of an aggregate of 4,515,043 shares (the "SHARES") of Common Stock, par value $.01 per share, of the Company (the "COMMON STOCK") and the resale of 2,433,182 shares of Common Stock (the "WARRANT SHARES") issuable upon exercise of warrants (the "WARRANTS") issued by the Company to the persons listed on Exhibit A hereto. In connection with the foregoing, we have examined originals or copies, satisfactory to us, of: (i) a Stock Purchase Agreement, dated September 5, 2002 (the "PURCHASE AGREEMENT"), among the Company and the persons listed on part 1 of Exhibit A, (ii) the Settlement and Amendment Agreement, dated September 6, 2002 (the "SETTLEMENT Agreement"), between Hewlett-Packard Company and the Company, (iii) the Warrants, (iv) the Company's Certificate of Incorporation, as amended, (v) the Company's By-laws, and (vi) resolutions of the Company's board of directors authorizing (A) the Company to enter into, and consummate, the transactions contemplated by the Purchase Agreement and the Settlement Agreement, including the issuance of Common Stock and warrants to such persons, and (B) the issuance of Common Stock and warrants to the persons listed on part 2 of Exhibit A. We have also reviewed such other matters of law 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 all documents submitted to us as copies or facsimiles. 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 of officers or other representatives of the Company. Based upon and subject to the foregoing, we are of the opinion that (a) the Shares have been validly issued and are fully paid and non-assessable and (b) the Warrant Shares, upon Jenkens & Gilchrist Parker Chapin LLP SmartServ Online, Inc. February 11, 2003 Page 2 issuance and payment by the Investors to the Company in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference made to us under the caption "Legal Matters" in the prospectus constituting part of 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 Act, the rules and regulations of the Commission promulgated under Section 7 of the Act or Item 509 of Regulation S-B promulgated under the Act. Very truly yours, /s/ JENKENS & GILCHRIST PARKER CHAPIN LLP JENKENS & GILCHRIST PARKER CHAPIN LLP Jenkens & Gilchrist Parker Chapin LLP SmartServ Online, Inc. February 11, 2003 Page 3 EXHIBIT A --------- Part 1: ------
SELLING STOCKHOLDERS SHARES WARRANT SHARES -------------------- ------ -------------- Ira M. Lubert 328,767 164,384 Jonathan Lubert Trust 109,589 54,795 Kristine Lubert Trust 109,589 54,795 Steven B. Rosner 273,972 553,1511 SPH Investments 273,972 136,986 Robert F. Gorman 657,534 0 A and R Investments L.L.C. 109,589 54,795 Daniel A. Gooze 219,178 109,589 S & H Management, Inc. 273,972 136,986 Mark Todd 164,383 82,192 John A. Moore 55,890 27,945 Barry M. Ray 54,794 27,397 Crestview Capital Offshore 21,918 10,959 Crestview Capital Fund II, LP 263,014 131,507 Crestview Capital Fund, LP 263,014 131,507 Robert H. Rosner IRA 109,589 54,795 Frazier Investments 364,062 129,089 Joel Rotter 219,178 109,589 Steven H. Erlbaum 109,589 54,795 Erlbaum Investments, L.P. 109,589 54,795 Stanley Yau-Hok Chan 27,500 13,750 David N. Lewis 20,000 10,000 Part 2: ------ SELLING STOCKHOLDERS SHARES WARRANT SHARES -------------------- ------ -------------- Joseph Genzardi 0 2,585 Joseph Ricuppero 0 2,585 Alpine Capital Partners, Inc. 0 76,712 John Bishara 0 65,000 JSB Associates 0 50,000 W. Stephen P. Harrington Trust 0 8,000 Shannon M. Harrington Trust 0 9,000 Tara J. Harrington Trust 0 8,000 David A. Rosner 0 25,000 Lauren P. Rosner 0 25,000 Hewlett-Packard Company 0 50,000 1 Does not include an aggregate of 50,000 warrant-shares held by David A. Rosner and Lauren P. Rosner and listed in Part 2 over which Steven B. Rosner shares voting and investment power. Jenkens & Gilchrist Parker Chapin LLP SmartServ Online, Inc. February 11, 2003 Page 4 SELLING STOCKHOLDERS SHARES WARRANT SHARES -------------------- ------ -------------- Brian Meek 0 7,500 Pertti Johannson 10,174 0 G.S. Schwartz & Company, Inc. 25,647 0 Vox, Inc. 62,500 0 Creative Management Services, d/b/a MC2 12,576 0 NexVue Information Systems 12,100 0 TecCapital Inc. 252,824 0