As filed with the Securities and Exchange Commission on October 13, 2000
Registration No. 333-_______
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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.
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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
-------------------------------------------- ----------------- ---------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
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
============================================ ================= ====================== ==================== ===================
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(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.
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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.
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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.
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Exhibit
Number Description
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<S> <C>
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.
</TABLE>
* Filed as an exhibit to the Company's registration statement on Form SB-2
(Registration No. 333-43258.)
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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
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public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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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.
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Signature Title Date
--------- ----- ----
<S> <C>
/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
</TABLE>
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<S> <C>
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
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
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<S> <C>
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.
</TABLE>
* Filed as an exhibit to the Company's registration statement on Form SB-2
(Registration No. 333-43258.)
