SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)1
SMARTSERV ONLINE, INC.
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(Name of issuer)
COMMON STOCK
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(Title of class of securities)
13-3750708
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(CUSIP number)
THOMAS J. FLEMING, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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(Name, address and telephone number of person
authorized to receive notices and communications)
May 12, 2000
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
/ /.
Note. six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
(Continued on following pages)
(Page 1 of 14 Pages)
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1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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CUSIP No. 13-3750708 13D Page 2 of 14 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wireless Acquisition Partners, LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 211,856 (subject to adjustment)
BENEFICIALLY
OWNED BY -----------------------------------------------------------------
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
0 shares
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
211,856 (subject to adjustment)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
211,856 (subject to adjustment)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.97%
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14 TYPE OF REPORTING PERSON*
00
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 13-3750708 13D Page 3 of 14 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Gregg A. Smith
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 211,856 (subject to adjustment)
OWNED BY
EACH -----------------------------------------------------------------
REPORTING
PERSON WITH
8 SHARED VOTING POWER
0 shares
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
211,856 (subject to adjustment)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
211,856 (subject to adjustment)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.97%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 13-3750708 13D Page 4 of 14 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Michael Wainstein
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
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4 SOURCE OF FUNDS*
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 211,856 (subject to adjustment)
OWNED BY
EACH -----------------------------------------------------------------
REPORTING
PERSON WITH
8 SHARED VOTING POWER
0 shares
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
211,856 (subject to adjustment)
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
211,856 (subject to adjustment)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.97%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
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CUSIP No. 13-3750708 13D Page 5 of 14 Pages
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The Schedule 13D filed by the undersigned (the "Schedule 13D") on March
31, 2000, previously amended by this Amendment No. 1, dated April 13, 2000, is
hereby amended by this Amendment No. 2, dated May 15, 2000.
Item 3. Source and Amount of Funds
Item 3 is amended to add the following:
The Reporting Persons identified in Item 2 of this Schedule
13D have not effected any transactions in shares of Common Stock of the Issuer
in the last sixty days, except as set forth above and as follows:
As part of its cashless exchange of the Supplemental Warrants,
and pursuant to the settlement described below, WAP was deemed to have sold
9,269 shares of Common Stock in order to acquire 60,000 shares of Common Stock
and such other shares as may be determined by the Issuer's independent public
accountant.
Item 5. Interest in Securities of the Issuer.
Items 5(a), (b), (c) and (e) are amended to add the following:
(a) The aggregate percentage of shares of Common Stock
reported owned by each person named herein is based upon 4,263,610 shares of
Common Stock outstanding, which is composed of (i) 4,033,754 shares of Common
Stock outstanding as of March 21, 2000 as reported in the Issuer's Registration
Statement for Small Business Issuers on Form SB-2 filed with the Securities and
Exchange Commission on April 17, 2000 and (ii) 229,856 shares of Common Stock
issued to the Reporting Persons on May 4, 2000 and May 12, 2000, as described in
Item 5(c) herein.
(b) As of the close of business on May 15, 2000, the Reporting
Persons beneficially owned 211,856 shares of Common Stock, constituting
approximately 4.97% of the shares of Common Stock outstanding of the Issuer. The
Reporting Persons have sole voting power over these shares.
(c) WAP sold the following shares of Common Stock in the open
market:
Date Amount Price
---- ------ -----
May 12, 2000 3,600 $46.25
May 15, 2000 5,000 $43.125
May 15, 2000 2,500 $45.125
May 15, 2000 4,400 $45.625
May 15, 2000 2,500 $49.50
On April 28, 2000, WAP commenced an action against the Issuer
for breach of the Underwriter's Agreement. On May 4, 2000, the Issuer delivered
to WAP the Underwriter's Warrant, reissued in the name of WAP, adjusted pursuant
to Section 7 thereof to provide for 84,551 warrants to acquire the Issuer's
Common Stock at $14.6361 per share and 85,305 warrants exercisable at $0.99 per
warrant to acquire warrants exercisable at $15.3221 per share.
On May 12, 2000, WAP entered into a Settlement Agreement with
the Issuer, a copy of which is annexed as Exhibit G and incorporated herein by
reference. Pursuant to the Settlement Agreement, and through its exercise of the
cashless exchange in the Supplemental Warrants, WAP will receive, among other
things, 60,000 shares of the Issuer's Common Stock. The amount of shares to be
received by WAP may be adjusted upward pursuant to the terms of the Settlement
Agreement. Accordingly, the Settlement Agreement fixed the number of shares
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CUSIP No. 13-3750708 13D Page 6 of 14 Pages
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beneficially owned by WAP at 229,856, representing approximately 5.4% of the
issued and outstanding shares. As set forth in the Settlement Agreement, a lock
up restriction applies to certain of these shares.
(e) As of May 15, 2000, the Reporting Persons owned less than
five percent of the Issuer's outstanding shares.
Item 7. Material to be Filed as Exhibits
Item 7 is amended to add the following:
Exhibit G. Settlement Agreement between WAP and the Issuer, dated May
12, 2000.
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: May 16, 2000
WIRELESS ACQUISITION PARTNERS, LLC
By: /s/ Michael Wainstein
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President - Michael Wainstein
/s/ Michael Wainstein
---------------------------------------
Michael Wainstein
/s/ Gregg A. Smith
---------------------------------------
Gregg A. Smith
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CUSIP No. 13-3750708 13D Page 7 of 14 Pages
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EXHIBIT INDEX
Exhibit Description Page
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A. Underwriters warrant to purchase common Previously filed.
stock and/or redeemable warrants, dated
March 21, 1996.
B. The Rickel/Issuer Agreement, dated April Previously filed.
24, 1997.
C. The Rickel/Issuer Agreement, dated May 19, Previously filed.
1997.
D. Order approving sale of debtor's assets in Previously filed.
In re Rickel & Associates, Inc., Case No.
98/B/47203 (SMB)(U.S. Bankruptcy Court,
S.D.N.Y.), dated March 20, 2000.
E. Letter from WAP to the Issuer, dated Previously filed.
April 11, 2000.
F. Letter from WAP to the Issuer, dated Previously filed.
April 12, 2000.
G. Settlement Agreement between WAP and Issuer 8
dated May 12, 2000.
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CUSIP No. 13-3750708 13D Page 8 of 14 Pages
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Exhibit G
SETTLEMENT AGREEMENT
WHEREAS, Wireless Acquisition Partners, LLC ("WAP") and SmartServ
Online, Inc. ("SSOL") are desirous of resolving any and all disagreements that
they may have regarding the Underwriter's Warrant dated March 21, 1996 (the
"Underwriter's Warrant") that WAP acquired from Rickel & Associates, Inc.
("Rickel") and the rights formerly held by Rickel to receive warrants (the
"Supplemental Warrants") pursuant to agreements dated April 27, 1997 and May 19,
1997 (the "Agreements"); and
WHEREAS, WAP commenced an action against SSOL in the Supreme Court of
New York, New York County, on April 27, 2000 (the "Action"), in which the Court
has issued an Order to Show Cause and Temporary Restraining Order, dated May 1,
2000 (the "TRO"), and the parties are desirous of vacating the TRO in order to
implement the Settlement Agreement;
IT IS HEREBY AGREED, this 12th day of May, 2000 for good and valuable
consideration, that
1. Affirmative Covenants - SSOL acknowledges, agrees to, and affirms
each of the following:
a. WAP is the lawful holder of the Underwriter's Warrant, as
reissued bearing date May 4, 2000, and is entitled to all rights thereunder,
including the right to acquire up to 84,551 shares SSOL's common stock at a
price of $14.6361 per share and up to 85,305 redeemable common stock purchase
warrants exercisable on the same terms at $0.99 per warrant, without further
adjustment pursuant to Section 7(L) of the Underwriter's Warrant.
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CUSIP No. 13-3750708 13D Page 9 of 14 Pages
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b. As the lawful assignee of Rickel, WAP is entitled to
receive the Supplemental Warrants under the Agreements; the Supplemental
Warrants shall be deemed to have been issued on the respective dates of the
Agreements, in the amounts and at the exercise prices set forth in the
Agreements and in form identical to the Underwriter's Warrant, except for the
inclusion of a right to exercise by virtue of a cashless exchange.
c. WAP properly exercised its right to a cashless exchange of
the Supplemental Warrants by letter dated April 11, 2000; the value of the SSOL
shares utilized in the cashless exchange was $65.125 per share, representing the
closing price on April 11, 2000; and the total consideration for the exercise
was 9,269 shares of SSOL common stock.
2. Registration - Promptly after signing this Agreement and in no event
later than ten (10) business days hereafter, SSOL shall amend the registration
statement dated April 17, 2000 on file with the Securities & Exchange Commission
(as amended, the "Registration Statement") to include all shares of SSOL common
stock underlying the Underwriter's Warrant. WAP shall cooperate fully with SSOL
and provide all information that SSOL requests. SSOL shall diligently pursue
completion of the Registration Statement. In the event the Registration
Statement is not declared effective within 45 days of the date of this
Agreement, WAP shall receive 200 warrants per day, such warrants to be in the
same form and on the same terms as the Underwriter's Warrant, until the
Registration Statement becomes effective. SSOL shall use its best efforts to
keep the Registration Statement effective. In the event the Registration
Statement ceases to be effective, SSOL shall within 15 days file a new
registration statement for the common stock underlying the Underwriter's
Warrant.
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CUSIP No. 13-3750708 13D Page 10 of 14 Pages
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3. Supplemental Warrants - Pursuant to the Supplemental Warrants and as
consideration for WAP's agreements herein, SSOL shall deliver to WAP, no later
than the close of business on May 17, 2000, a certificate for 60,000 shares of
freely tradeable SSOL common stock (the "Share Certificate"). Simultaneous with
the signing of this agreement, SSOL shall deliver a letter of instruction to its
transfer agent for the issuance of the Share Certificate. In the event the Share
Certificate is not delivered by May 17, 2000, then WAP shall receive 250
warrants per day, such warrants to be in the same form and on the same terms as
the Supplemental Warrants, until the Share Certificate is delivered. No later
than May 22, 2000, SSOL shall deliver to WAP a certificate of its independent
public accountant in accordance with Section 7(L) of the Underwriter's Warrant
(the "Certificate") which shall definitively set forth the number of shares and
exercise price for the Supplemental Warrants calculated in accordance with the
provisions of Section 7 of the Underwriter's Warrant, with the parties agreeing
that Section 7 of the Underwriter's Agreement is included in haec verba in the
Supplemental Warrants. In the event the Certificate provides for the
Supplemental Warrants to be adjusted to a number of shares in excess of 69,269,
then SSOL shall, within forty eight (48) hours, deliver to WAP a share
certificate for freely tradeable SSOL common stock in the foregoing amount, net
of the 69,269 shares previously delivered or used in the cashless exchange. In
the event the Certificate provides for an amount less than 69,269, WAP shall not
be obligated to return any shares previously received, nor shall SSOL shall be
entitled to any adjustment in the Underwriter's Warrant or credit in any form.
4. Lock-up - WAP agrees that, during the Lock Up Period,
without the prior written consent of SSOL, WAP shall not directly or indirectly,
issue, offer to sell, sell, grant an option for the sale of, assign, transfer,
pledge, hypothecate or otherwise encumber or dispose of any securities to be
issued by SSOL pursuant to the Underwriter's Warrant or any warrants included in
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CUSIP No. 13-3750708 13D Page 11 of 14 Pages
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the Underwriter's Warrant, in a number of shares and warrants equal to the Lock
Up Amount. The Lock Up Period shall commence on the date of this Agreement and
shall continue for the shorter of (i) ninety (90) days after the effective date
of the Registration Statement or (ii) the termination date of any other existing
lockup arrangement or lockup arrangement entered into hereafter, excluding the
lockup arrangement involving 683,333 shares which terminates beginning on May
15, 2000. The Lock Up Amount shall be the number of shares and warrants
remaining under the Underwriter's Warrant, after WAP has received proceeds in
the amount of $4.25 million, net of brokerage fees and commissions, and, where
applicable, the costs of exercising any warrants, from (i) the sale of SSOL
common stock issued pursuant to the Supplemental Warrants and (ii), after all
such shares have been sold and only if the net proceeds derived therefrom is
less than $4.25 million, the exercise of warrants under the Underwriter's
Warrant and the sale of stock derived therefrom. The parties further agree that
paragraph 1(a)(ii) of the Underwriter's Warrant shall be modified to extend the
date of March 22, 2001 by the same number of days as the Lock Up Period.
5. The Action - Simultaneously upon execution of this Agreement, the
TRO shall be vacated. In addition, the parties shall advise the Court promptly
that the return date and other dates set forth in the TRO are adjourned for
forty five (45) days in order to complete the Settlement. Upon the effective
date of the Registration Statement, the Action shall be dismissed with prejudice
and all claims that were or might have been asserted therein, including any
counterclaims, shall also be dismissed with prejudice, and the parties shall
exchange general releases, saving only their rights under this Agreement. Each
party hereby instructs its counsel to cooperate in the preparation of all papers
necessary to effectuate this paragraph.
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CUSIP No. 13-3750708 13D Page 12 of 14 Pages
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6. Miscellaneous.
i. Notices. All notices or other communications hereunder shall be
in writing and shall be deemed to have been duly given if sent by nationally
recognized overnight courier and by registered or certified mail, postage
prepaid, return receipt requested, addressed to the parties at their addresses
set forth below, or at such other addresses as they may designate by notice
given as aforesaid. Notices shall be deemed given when sent in accordance with
the foregoing. Copies of notices shall also be sent (i) to the attorneys for the
parties, as designated below by first class mail or nationally recognized
overnight courier; and (ii) by telecopy, if available:
To WAP: Michael Wainstein
505 Park Avenue
14th Floor
New York, New York 10022
Attorneys for WAP:
Thomas J. Fleming, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
Fax: (212) 755-1467
To SSOL:
SmartServ Online, Inc.
One Station Place
Stamford, CT 06902
Attn: Chief Executive Officer
Attorneys for SSOL:
Michael J. Shef, Esq.
Parker Chapin LLP
405 Lexington Avenue
New York, New York 10174
Fax: (212) 704-6288
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CUSIP No. 13-3750708 13D Page 13 of 14 Pages
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ii. Further Assurances. The parties shall execute and deliver,
or cause to be executed and delivered, such additional, other or further
documents or instruments and take such other action as may be reasonably
required to more effectively implement the provisions and intent of this
Agreement.
iii. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed wholly within such State. New
York County shall be the exclusive forum to resolve any dispute under this
agreement. In any action to enforce this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys fees and costs.
iv. Entire Agreement. This Agreement sets forth the entire
understanding of the parties in respect to the transactions contemplated herein
and supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof.
v. Amendments and Waivers to be in Writing. This Agreement may
not be amended, modified or changed, and none of the terms, covenants,
representations, warranties or conditions hereof may be waived, except by a
written instrument signed by the party against whom enforcement of any change or
modification is sought, or in the case of a waiver, by the party waiving
compliance. The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect the right at a later time to
enforce same.
vi. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall be deemed one and the same instrument.
vii. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the heirs, legal representatives, administrators,
successors and assigns of the parties.
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CUSIP No. 13-3750708 13D Page 14 of 14 Pages
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viii. Settlement. This Agreement is being entered into solely
to effectuate a compromise of claims, without any concession by either party
regarding the merits of their respective claims against the other. It may not be
used in evidence by either party, except to enforce its terms.
WIRELESS ACQUISITION PARTNERS, LLC
By: /s/ Michael Wainstein
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SMARTSERV ONLINE, INC.
By: /s/ Thomas Haller
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