EXHIBIT 3.1


                AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
                                       OF
                             SMARTSERV ONLINE, INC.


          It is hereby certified that:

          1. The name of the corporation is Smartserv Online, Inc.

          2. The date of filing of its  original  Certificate  of  Incorporation
with the  Secretary of State of the State of Delaware  was August 20, 1993.  The
name under which the corporation was incorporated was Smart Phone Communications
(Delaware), Inc.

          3. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the existing  Certificate of Incorporation of this
corporation  pursuant to Sections 242 and 245 of the General  Corporation Law of
the State of Delaware.

          4. The text of the existing Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set forth in
full:

                                   ARTICLE ONE
                                   -----------

          The name of the corporation  (hereinafter called the "Corporation") is
Smartserv Online, Inc.

                                   ARTICLE TWO
                                   -----------

          The  address,  including  street,  number,  city,  and county,  of the
registered  office of the  Corporation  in the State of  Delaware is 1013 Centre
Road,  Wilmington,  Delaware 19805;  and the name of the registered agent of the
Corporation  in the State of Delaware  at such  address is  Corporation  Service
Company.

                                  ARTICLE THREE
                                  -------------

          The  nature of the  business  and the  purposes  to be  conducted  and
promoted by the Corporation shall be to conduct any lawful business,  to promote
any  lawful  purpose,  and to engage in any  lawful  act or  activity  for which
corporations may be organized under the General  Corporation Law of the State of
Delaware.

<PAGE>

                                  ARTICLE FOUR
                                  ------------

          The  aggregate  number of  shares  which the  Corporation  shall  have
authority to issue is 15,000,000 shares, all of which shall be Common Stock, par
value $.01 per share.

                                  ARTICLE FIVE
                                  ------------

          In  furtherance  and not in limitation of the powers  conferred by the
laws of the State of Delaware,  the  following  provisions  are inserted in this
Amended and Restated Certificate of Incorporation for the regulation and conduct
of the business and affairs of the Corporation:

          1. The  property,  affairs and  business of the  Corporation  shall be
managed by its Board of Directors consisting of not less than three (3) nor more
than fifteen  (15)  persons.  The exact  number of directors  within the maximum
limitations  specified  shall  be fixed  from  time to time by  resolution  of a
majority  of the  whole  Board of  Directors.  The Board of  Directors  shall be
divided into three  classes,  designated  Class I, Class II and Class III, which
shall be as nearly  equal in  number  as  possible.  The  Corporation's  Class I
directors,  Class II  directors  and Class III  directors  will serve  until the
annual meeting of the  Corporation's  stockholders  to be held in 1996, 1997 and
1998,  respectively,  and until their respective successors are duly elected and
qualified or until their earlier  resignation or removal. At each annual meeting
of stockholders thereafter,  the successors of the class of directors whose term
expires at that annual meeting shall be elected for a term expiring at the third
successive annual meeting of stockholders and until their respective  successors
shall  be  elected  and  qualify.   No  decrease  in  the  number  of  directors
constituting  the Board of  Directors  shall  shorten the term of any  incumbent
director.  Newly created directorships and eliminated  directorships shall be so
apportioned among the classes of directors as to make all such classes as nearly
equal in number as possible.

          2.  Directors may be removed from office  without cause by the holders
of a majority  of the  outstanding  shares of capital  stock of the  Corporation
entitled to vote at an election of directors.

          3. Newly  created  directorships  resulting  from an  increase  in the
number  of  directors  and  all  vacancies  occurring  on the  Board,  including
vacancies  occurring on the Board by reason of the removal of directors,  may be
filled by the  affirmative  vote of a majority of the directors  then in office,
though less than a quorum of the Board of  Directors,  and  directors  so chosen
shall hold  office  until  their  respective  successors  shall be  elected  and
qualified.

          4. The  directors of the  Corporation,  by the  affirmative  vote of a
majority of the whole Board, at any regular or special  meeting,  shall have the
power to adopt, amend or repeal By-Laws of the Corporation,  provided,  however,
that such power of the Board shall not divest the

                                     - 2 -
<PAGE>

stockholders of the Corporation of their power to adopt, amend or repeal By-Laws
of the Corporation.

          5. In addition to the powers and authorities  conferred upon the Board
of Directors of the  Corporation  by this  Amended and Restated  Certificate  of
Incorporation,  the Board of Directors of the  Corporation may exercise all such
powers  and  take  all  such  actions  as  may  be  exercised  or  taken  by the
Corporation,  subject,  however,  to the  provisions of the laws of the State of
Delaware, this Amended and Restated Certificate of Incorporation and the By-Laws
of the Corporation.

          6. Any vote or votes  authorizing  liquidation  of the  Corporation or
proceedings for its dissolution may provide,  subject to the rights of creditors
and preferred  stockholders,  if any, for the  distribution  pro-rata  among the
stockholders of the Corporation of the assets of the  Corporation,  wholly or in
part, in cash or in kind, whether such assets be in cash or other property,  and
any such vote or votes may authorize  the Board of Directors of the  Corporation
to determine the valuation of the different  assets of the  Corporation  for the
purpose of such  liquidation  and may divide or authorize the Board of Directors
to  divide  such  assets  or any part  thereof  among  the  stockholders  of the
Corporation,  in such manner that every stockholder will receive a proportionate
amount  in value  (determined  as  aforesaid)  of cash  and/or  property  of the
Corporation  upon such  liquidation or dissolution  even though each stockholder
may not receive a strictly proportionate part of each such asset.

          7. Whenever the vote of  stockholders at a meeting thereof is required
or  permitted  to be  taken  in  connection  with any  corporate  action  by any
provisions of the laws of the State of Delaware,  such corporate action may only
be taken at a meeting of stockholders and not by written consent.

          8. Special  meetings of the  stockholders  for any purpose or purposes
may be called at any time by the President or Secretary of the Corporation or by
resolution  of the Board of  Directors  and shall be called by the  President or
Secretary  upon the  written  request  of  stockholders  holding  not less  than
fifty-one percent (51%) of the outstanding capital stock of the Corporation.

                                   ARTICLE SIX
                                   -----------

          The Corporation is to have perpetual existence.

                                  ARTICLE SEVEN
                                  -------------

          No director of the  Corporation  shall be liable to the Corporation or
its stockholders for monetary damages or breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under

                                     - 3 -
<PAGE>

Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the  director  derived an  improper  personal  benefit.  Neither  the
amendment  nor repeal of this Article nor the adoption of any  provision of this
Amended and Restated Certificate of Incorporation inconsistent with this Article
Seven,  shall eliminate or reduce the effect of this Article Seven in respect of
any matter occurring,  or any cause of action,  suit or claim that, but for this
Article Seven would accrue or arise, prior to such amendment, repeal or adoption
of an inconsistent provision.

                                  ARTICLE EIGHT
                                  -------------

          From time to time any of the  provisions  of this Amended and Restated
Certificate  of  Incorporation  may be amended,  altered or repealed,  and other
provisions  authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time  prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation by
this Amended and Restated  Certificate of  Incorporation  are granted subject to
the provisions of this Article Eight.

          5. The  Amended  and  Restated  Certificate  of  Incorporation  herein
certified has been duly adopted in accordance with the applicable  provisions of
Sections 228 and 242 of the General Corporation Law of the State of Delaware.

Signed on March 18, 1996

                                        SMARTSERV ONLINE, INC.



                                        By: /s/ Steven T. Francesco
                                            ------------------------------------
                                            Steven T. Francesco, President

                                     - 4 -
<PAGE>

                            CERTIFICATE OF AMENDMENT
                                     OF THE
                AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
                                       OF
                             SMARTSERV ONLINE, INC.

It is hereby certified that:

          1. The name of the corporation  (hereinafter called the "Corporation")
is SMARTSERV ONLINE, INC.

          2. The  certificate  of  incorporation  of the  Corporation  is hereby
amended by striking out Article  "FOUR" thereof and by  substituting  in lieu of
said Article the following new Article "FOUR":

               "FOUR: The aggregate number of shares which the Corporation shall
          have authority to issue is 41,000,000,  divided into two classes:  (i)
          40,000,000  shares of Common  Stock,  par  value  $.01 per share  (the
          "Common  Stock");  and (ii) 1,000,000  shares of preferred  stock, par
          value $.01 per share (the "Preferred Stock").

          A.     Common Stock

               (1) General.  The voting,  dividend and liquidation rights of the
          holders of the Common Stock are subject to and qualified by the rights
          of  the  holders  of  the  Preferred  Stock  of  any  class  as may be
          designated  by  the  Board  of  Directors  upon  any  issuance  of the
          Preferred Stock of any class.

               (2) Voting.  Each  holder of Common  Stock shall have one vote in
          respect of each share of Common Stock held by him on all matters voted
          upon by the stockholders.

               (3)  Dividends.  Dividends may be declared and paid on the Common
          Stock from funds lawfully available therefor as and when determined by
          the Board of Directors and subject to any preferential dividend rights
          of any then outstanding Preferred Stock.

               (4)  Liquidation.  Upon the  dissolution  or  liquidation  of the
          Company,  whether  voluntary or  involuntary,  holders of Common Stock
          will be entitled to receive  all assets of the Company  available  for
          distribution to its stockholders,  subject to any preferential  rights
          of any then outstanding Preferred Stock.
<PAGE>

          B.     Preferred Stock

               The Preferred  Stock may be issued,  from time to time, in one or
          more  series,  with  such  designations,   preferences  and  relative,
          participating,  optional or other rights, qualifications,  limitations
          or  restrictions  thereof  as shall be  stated  and  expressed  in the
          resolution  or  resolutions  providing  for the  issue of such  series
          adopted by the Board of Directors  from time to time,  pursuant to the
          authority  herein given,  a copy of which  resolution  or  resolutions
          shall  have  been  set  forth  in  a   Certificate   made,   executed,
          acknowledged, filed and recorded in the manner required by the laws of
          the State of Delaware in order to make the same effective. Each series
          shall  consist  of such  number  of  shares  as  shall be  stated  and
          expressed in such resolution or resolutions providing for the issuance
          of the stock of such series. All shares of any one series of Preferred
          Stock shall be alike in every  particular.  The authority of the Board
          of Directors  with respect to each series  shall  include,  but not be
          limited to, determination of the following:

                    (1) the number of shares  constituting  that  series and the
               distinctive designation of that series;

                    (2) whether  the  holders of shares of that series  shall be
               entitled  to  receive  dividends  and,  if so,  the rates of such
               dividends, conditions under which and times such dividends may be
               declared or paid,  the  preference  of any such  dividends to, in
               relation to, the dividends  payable on any other class or classes
               of stock  or any  other  series  of the same  class  and  whether
               dividends   shall  be   cumulative  or   noncumulative   and,  if
               cumulative, from which date or dates;

                    (3) whether the holders of shares of that series  shall have
               voting  rights in addition to the voting  rights  provided by law
               and, if so, the terms of such voting rights;

                    (4) whether  shares of that series shall have  conversion or
               exchange  privileges  into or for,  at the  option of either  the
               holder or the  Corporation  or upon the  happening of a specified
               event,  shares  of any  other  class or  classes  or of any other
               series  of the same or other  class  or  classes  of stock of the
               Corporation  and,  if  so,  the  terms  and  conditions  of  such
               conversion or exchange including  provision for adjustment of the
               conversion  or  exchange  rate in such  events  as the  Board  of
               Directors shall determine;

                    (5) whether  shares of that series shall be redeemable  and,
               if so, the terms and conditions of such redemption, including the
               date or dates upon or after  which they shall be  redeemable  and
               the amount per share payable in case of redemption,  which amount
               may vary under different  conditions and at different  redemption
               dates;

                    (6) whether  shares of that  series  shall be subject to the
               operation of a retirement or sinking fund and, if so subject, the
               extent  to and the  manner  in which it shall be  applied  to the
               purchase  or  redemption  of the shares of that  series,  and the
               terms and provisions relative to the operation thereof;

                                     - 2 -
<PAGE>

                    (7) the  rights  of  shares  of that  series in the event of
               voluntary or involuntary  liquidation,  dissolution or winding up
               of the  Corporation and any preference of any such rights to, and
               the  relation  to, the rights in respect  thereto of any class or
               classes of stock or any other series of the same class; and

                    (8)  whether  shares  of that  series  shall be  subject  or
               entitled  to any  other  preferences,  and  the  other  relative,
               participating,    optional   or   other   special    rights   and
               qualifications,  limitations  or  restrictions  of shares of that
               series and, if so, the terms thereof;

                    provided,  however, that if the stated dividends and amounts
               payable on  liquidation  with  respect to shares of any series of
               Preferred  Stock  are not paid in full,  then the  shares  of all
               series of Preferred  Stock shall share  ratably in the payment of
               dividends including accumulations, if any, in accordance with the
               sums which would be payable on such shares if all dividends  were
               declared  and paid in full,  and in any  distribution  of  assets
               (other  than by way if  dividends)  in  accordance  with the sums
               which would be payable on such  distribution  if all sums payable
               were discharged in full."

          3. The amendment of the certificate of incorporation  herein certified
has been duly adopted in  accordance  with the  provisions of Section 242 of the
General Corporation Law of the State of Delaware.

Signed on May 29, 1998.

                                        /s/ Sebastian E. Cassetta
                                        ----------------------------------------
                                        Chief Executive Officer

Attest:

/s/ Thomas Haller
--------------------------------
Thomas Haller, Vice President

                                     - 3 -
<PAGE>

                            CERTIFICATE OF AMENDMENT
                                     OF THE
                AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
                                       OF
                             SMARTSERV ONLINE, INC.
                            -------------------------
                            (PURSUANT TO SECTION 242)

It is hereby certified that:

     1. The name of the corporation  (hereinafter  called the  "Corporation") is
SMARTSERV ONLINE, INC.

     2. The certificate of incorporation of the Corporation is hereby amended by
adding the  following  paragraph to Article  "FOUR"  thereof to follow the first
paragraph of said Article "FOUR":

     Every six issued and  outstanding  shares of the  Common  Stock,  par value
     $0.01 per share (the "Common Stock"),  of the Corporation  shall,  upon the
     filing date of this  Certificate of Amendment (which filing date shall also
     be the  effective  date),  automatically  be  combined  into one issued and
     outstanding  share of Common  Stock,  par value $.01 per  share;  provided,
     however,  that  fractional  shares  of Common  Stock  will not be issued in
     connection  with such  reclassification,  and each  holder of a  fractional
     share of Common Stock shall receive in lieu thereof a cash payment from the
     Corporation  determined by multiplying six times such  fractional  share of
     Common  Stock by the average of the bid and asked price per share of Common
     Stock as quoted on the NASD OTC  Bulletin  Board for the five  trading days
     immediately preceding the effective date of this Certificate of Amendment.


Signed on October 16, 1998.

                                /s/ Sebastian E. Cassetta
                                ------------------------------------------------
                                Chief Executive Officer

Attest:

/s/ Thomas Haller
---------------------------------
Thomas Haller, Vice President
<PAGE>


                            CERTIFICATE OF AMENDMENT

                           OF THE AMENDED AND RESTATED

                          CERTIFICATE OF INCORPORATION

                                       OF

                             SMARTSERV ONLINE, INC.

     Pursuant  to  the  provisions  of  Section  242  of  the  Delaware  General
Corporation Law, the undersigned executes the following Certificate of Amendment
of the Amended and Restated  Certificate of Incorporation  of SmartServ  Online,
Inc. (the "Corporation"):

          1. The name of the corporation is SmartServ Online, Inc.

          2. The  amended  and  restated  certificate  of  incorporation  of the
     Corporation,  as  amended to date,  is to be further  amended by adding the
     following paragraph  immediately after the second paragraph of ARTICLE FOUR
     thereof:

          "Effective  on Tuesday,  November  25,  2003,  every six (6) shares of
          Common Stock, $.01 par value per share, of the Corporation  issued and
          outstanding or held in the Treasury of the  Corporation  automatically
          shall  be  combined  into  one  (1)  share  of  Common  Stock  of  the
          Corporation.  There shall be no fractional shares issued.  Each holder
          of shares of Common Stock who otherwise would be entitled to receive a
          fractional  share shall be entitled to receive a cash  payment in lieu
          thereof at a price equal to the  fraction  to which such holder  would
          otherwise be entitled to receive  multiplied  by the closing  price of
          Common  Stock as  reported  in The  Wall  Street  Journal  on the last
          trading day prior to the filing of this  Certificate  of  Amendment of
          the  Amended  and  Restated   Certificate  of   Incorporation  of  the
          Corporation,  or, if such prices is not available,  the average of the
          last bid and asked  prices of the  Common on such day,  or such  other
          prices  as  may  be  determined  by  the  Board  of  Directors  of the
          Corporation."

          3. The foregoing amendment was duly adopted pursuant to Section 242 of
     the Delaware General  Corporation Law by unanimous  consent of the Board of
     Directors  of the  Corporation  pursuant to Section  141(f) of the Delaware
     General  Corporation  Law and by a majority  of the  outstanding  shares of
     common stock of the Corporation at the Special Meeting of Stockholders that
     took place on November 5, 2003.

Date: November 24, 2003

                                        /s/ Thomas W. Heller
                                        ----------------------------------------
                                        Name: Thomas W. Heller
                                        Title: Senior Vice President and
                                        Chief Financial Officer

<PAGE>

              CERTIFICATE TO SET FORTH DESIGNATIONS, VOTING POWERS,
              PREFERENCES, LIMITATIONS, RESTRICTIONS, AND RELATIVE
                         RIGHTS OF SERIES A CONVERTIBLE
                                 PREFERRED STOCK



     It is hereby certified that:

     I.  The  name  of  the   corporation   is  SmartServ   Online,   Inc.  (the
"Corporation"), a Delaware corporation.

     II. The  certificate  of  incorporation  of the  Corporation,  as  amended,
authorizes the issuance of 1,000,000 shares of Preferred  Stock,  $.01 par value
per share,  and expressly vests in the Board of Directors of the Corporation the
authority provided therein to issue all of said shares in one or more Series and
by resolution or resolutions to establish the  designation and number and to fix
the relative rights and preferences of each series to be issued.

     III. The Board of Directors of the  Corporation,  pursuant to the authority
expressly  vested  in it,  has  unanimously  adopted  the  following  resolution
creating a class of Series A Preferred Stock:

     RESOLVED, that a portion of the authorized shares of Preferred Stock of the
Corporation  shall be designated as a separate series  possessing the rights and
preferences set forth below:

     1.  Designation:  Number  of  Shares.  The  designation  of said  series of
Preferred  Stock shall be Series A  Convertible  Preferred  Stock (the "Series A
Preferred  Stock").  The number of shares of Series A  Preferred  Stock shall be
500,000.  Each share of Series A Preferred  Stock shall have a par value of $.01
per share.  The "Issuance  Price" of each share of the Series A Preferred  Stock
shall  be  the  aggregate  purchase  price  at  which  such  share,  along  with
accompanying  warrants,  was first  issued  and sold by the  Corporation  to the
original  holder  thereof  pursuant to the  Corporation's  Confidential  Private
Placement  Memorandum  dated January 30, 2004, as amended or  supplemented  from
time to time  (the  "Memorandum"),  which  purchase  price  will be equal to the
lesser of (A) ten (10) times the lesser of (i) 80% of the average of the closing
bid prices of the  Corporation's  common  stock,  par value $.01 per shares (the
"Common Stock") over the ten trading days immediately preceding the date of each
closing of such  issuance  and sale or (ii) 80% of the  closing bid price of the
Common Stock on the trading day immediately prior to the date of such closing or
(B) with respect to closings after the first closing,  the purchase price at the
first closing.  The "Original Issue Date" shall mean the date on which shares of
Series A Preferred Stock are last issued and sold by the Corporation.

     2.   Ranking.  The Series A  Preferred  Stock  shall rank (i) senior to the
          Corporation's  Common Stock) and (ii) senior to any class or series of
          capital stock of the Corporation hereafter created, in each case as to
          payment  of  dividends,   distribution  of  assets  upon  liquidation,
          dissolution  or winding up of the  Corporation,  whether  voluntary or
          involuntary.

     3. Dividends.


          (a) Each holder of outstanding shares of Series A Preferred Stock (the
"Holders")  shall be entitled to receive  preferential  dividends in cash out of
any funds of the  Corporation  legally

                                       1
<PAGE>

available at the time for declaration of dividends  before any dividend or other
distribution will be paid or declared and set apart for payment on any shares of
any Common Stock or other class or series of stock presently authorized or to be
authorized   (the  Common  Stock,   and  such  other  stock  being   hereinafter
collectively  the "Junior Stock") at the rate of 8% simple interest per annum on
the  Issuance  Price  per share of Series A  Preferred  Stock  then held by such
holder payable quarterly commencing [June 30, 2004] and on the last business day
of  each  consecutive  calendar  quarter  thereafter,  provided,  however,  that
dividend  payments may, in the sole  discretion of the  Corporation,  be made in
fully paid and non  assessable  registered  shares of the  Corporation's  Common
Stock at a price  valued at the  lesser of (i) the  average of the  closing  bid
price of the Common Stock over the five trading days  immediately  prior to such
dividend  payment date or (ii) the closing bid price the trading day immediately
prior  to  such  dividend  payment  date.  As  used  in the  previous  sentence,
"registered" shall mean the subject of a then-effective  registration  statement
covering  the resale of such shares of the  Corporation's  Common  Stock,  which
registration  statement shall remain  effective for the lesser of one year after
the  issuance  of such shares and such time as all such shares have been sold by
the holders of Series A Preferred Stock.

          (b) The dividends on the Series A Preferred Stock at the rate provided
above shall be cumulative so that, if at any time full  cumulative  dividends on
all shares of the Series A Preferred Stock then outstanding  shall not have been
paid or declared and set apart for payment,  or if the full dividend on all such
outstanding  Series A Preferred Stock for the then current dividend period shall
not have been paid or  declared  and set apart for  payment,  the  amount of the
deficiency  shall be paid or  declared  and set apart for payment  (but  without
interest  thereon)  before  any sum  shall be set apart  for or  applied  by the
Corporation or a subsidiary of the  Corporation  to the purchase,  redemption or
other  acquisition  of the Series A Preferred  Stock and before any  dividend or
other  distribution  shall be paid or declared  and set apart for payment on any
Junior  Stock  and  before  any sum shall be set  aside  for or  applied  to the
purchase, redemption or other acquisition of Junior Stock.

          (c)  Dividends  on all shares of the Series A  Preferred  Stock  shall
begin to accrue and be cumulative  from and after the date of issuance  thereof,
and shall accrue whether or not declared.  A dividend  period shall be deemed to
commence on the day following a quarterly dividend payment date herein specified
and to end on  the  next  succeeding  quarterly  dividend  payment  date  herein
specified.

     4. Liquidation Rights.

          (a)  Upon  the   dissolution,   liquidation   or   winding-up  of  the
Corporation,  whether  voluntary  or  involuntary,  the  Holders of the Series A
Preferred  Stock shall be entitled to receive before any payment or distribution
shall  be  made  on the  Junior  Stock,  out of the  assets  of the  Corporation
available for  distribution  to  stockholders,  the Issuance  Price per share of
Series A Preferred Stock then  outstanding and all accrued and unpaid  dividends
and  including  the date of  payment  thereof.  Upon the  payment in full of all
amounts due to holders of the Series A Preferred  Stock and any other  series of
junior  Preferred  Stock,  all  remaining  assets  of  the  Corporation  legally
available for distribution  shall be paid to the holders of the Common Stock and
Series A Preferred  Stock,  such  distribution to be effected  ratably among all
such holders based on the number of shares of Common Stock that would be held if
the Series A Preferred  Stock were converted into shares of Common Stock. If the
assets of the  Corporation  available  for  distribution  to the  Holders of the
Series A Preferred  Stock shall be insufficient to permit payment in full of the
amounts  payable as  aforesaid  to the holders of Series A Preferred  Stock upon
such liquidation,  dissolution or winding-up,  whether voluntary or involuntary,
then all such assets of the Corporation  shall be distributed  ratably among the
Holders of the Series A Preferred Stock.

          (b) For the purposes of this Certificate, the term "liquidation" shall
be deemed to include (i) a consolidation  or merger of the  Corporation  with or
into any other corporation (except where the

                                       2
<PAGE>

holders of Common Stock  immediately  prior to such  transaction  would own more
than 50% of the voting securities of the surviving entity immediately  following
such  transaction),  (ii) a merger of any other corporation into the Corporation
(except where the holders of Common Stock  immediately prior to such transaction
would  own more  than  50% of the  voting  securities  of the  surviving  entity
immediately   following  such  transaction),   (iii)  a  reorganization  of  the
Corporation,  (iv) a purchase or redemption of all or a substantial  part of the
outstanding  shares of any class or classes of capital stock of the  Corporation
or (v) a sale, transfer, assignment or other disposition of all or substantially
all the assets of the Corporation.

     5. Conversion  into Common Stock.  Shares of Series A Preferred Stock shall
have the following conversion rights and obligations:

          (a) Subject to the further provisions of this paragraph 5, each holder
of  shares  of  Series  A  Preferred  Stock  shall  have  the  right at any time
commencing  after the issuance of the Series A Preferred Stock to such holder to
convert any or all of such shares into fully paid and  non-assessable  shares of
Common  Stock  of the  Corporation  pursuant  to  the  calculation  provided  in
paragraph  5(c)  below.  All  issued or  accrued  but  unpaid  dividends  may be
converted at the election of the Holder  simultaneously  with the  conversion of
the Series A Preferred Stock being converted.

          (b)  All  shares  of  Series  A  Preferred  Stock   outstanding  shall
automatically  convert into shares of Common Stock as provided in paragraph 5(c)
upon the earliest of (i) the third anniversary of the date of the Original Issue
Date (the  "Mandatory  Conversion  Date"),  or (ii) upon  written  notice by the
Corporation if, following the second anniversary of the Original Issue Date, the
closing  price of the  Corporation's  Common Stock as listed or quoted on either
the NASD OTCBB or the  following  markets or exchanges on which the Common Stock
is listed or quoted for  trading on the date in  question:  the  American  Stock
Exchange,  the New York Stock Exchange, the Nasdaq National Market or the Nasdaq
SmallCap Market,  whichever is the principal trading market for the Common Stock
at such time, is $4.00 per share  (subject to adjustment in connection  with any
forward or reverse  stock  split,  stock  dividend,  merger,  reorganization  or
similar event) or greater for twenty (20) consecutive trading days.

          (c) The number of shares of Common Stock  issuable upon  conversion of
each  share of  Series A  Preferred  Stock  shall  equal  (i) the sum of (A) the
Issuance  Price of such  share and (B) at the  holder's  election,  accrued  and
unpaid  dividends  on such  shares,  divided  by (ii) a  conversion  price  (the
"Conversion  Price"),  which  shall  initially  be equal to 10% of the  Issuance
Price, and shall be subject to adjustment pursuant to paragraph 5(e) below.

          (d) The Holder of any  certificate  for  shares of Series A  Preferred
Stock  desiring to convert any of such shares may give notice of its decision to
convert   the  shares  into  Common   Stock  by   delivering,   along  with  the
certificate(s)  representing  the  shares  of  Series  A  Preferred  Stock to be
converted,   an  executed  and  completed  notice  of  conversion   ("Notice  of
Conversion")  to the  Corporation  (a "Conversion  Date").  Each date on which a
notice of  conversion  is  delivered or  telecopied  to the  Corporation  or the
Corporation's  transfer agent in accordance with the provisions  hereof shall be
deemed a Conversion Date. A form of Notice of Conversion that may be employed by
a Holder is annexed hereto as Exhibit A. The Corporation will cause the transfer
agent to transmit the certificates  representing the shares of the Corporation's
Common Stock  issuable upon  conversion  of the Series A Preferred  Stock (and a
certificate  representing  the  balance of the Series A  Preferred  Stock not so
converted,  if  requested  by the  Holder)  to the  Holder by (i) to the  extent
permitted by the transfer  agent for the Common Stock,  crediting the account of
the Holder's prime broker with the Depository Trust Corporation  ("DTC") through
its Deposit Withdrawal Agent Commission  ("DWAC") system, or (ii) otherwise,  by
delivery to the Holder

                                       3
<PAGE>

of a stock certificate representing such shares of Common Stock, within five (5)
business days after receipt by the  Corporation  of the Notice of Conversion and
the  certificate(s)  representing  the shares of Series A Preferred  Stock to be
converted (the "Delivery  Date").  The  Corporation  shall deliver to the Holder
simultaneously  with the  aforedescribed  Common  Stock,  at the election of the
Holder,  additional Common Stock representing the conversion,  at the Conversion
Price, of dividends accrued on the Series A Preferred Stock being converted.

               In the case of the exercise of the conversion rights set forth in
paragraph 5(a) the conversion  privilege  shall be deemed to have been exercised
and the shares of Common Stock issuable upon such conversion  shall be deemed to
have been  issued upon the date of receipt by the  Corporation  of the Notice of
Conversion.  The person or entity entitled to receive Common Stock issuable upon
such conversion  shall, on the date such conversion  privilege is deemed to have
been exercised and thereafter,  be treated for all purposes as the record holder
of such  Common  Stock and shall on the same date  cease to be  treated  for any
purpose  as the  record  holder of such  shares of Series A  Preferred  Stock so
converted.

               Upon the conversion of any shares of Series A Preferred  Stock no
adjustment  or payment  shall be made with respect to such  converted  shares on
account of any  dividend  on the Common  Stock,  except  that the holder of such
converted  shares shall be entitled to be paid any dividends  declared on shares
of Common Stock after conversion thereof.

               The  Corporation  shall not be required,  in connection  with any
conversion  of Series A Preferred  Stock,  to issue a fraction of a share of its
Common Stock and shall instead deliver a stock certificate representing the next
whole number of shares.

          (e) The Conversion Price determined  pursuant to 5(c) shall be subject
to adjustment from time to time as follows:

               (i) In case the  Corporation  shall at any time (A)  declare  any
dividend  or  distribution  on its  Common  Stock,  (B) split or  subdivide  the
outstanding  Common  Stock,  (C) combine  the  outstanding  Common  Stock into a
smaller number of shares, or (D) issue by  reclassification  of its Common Stock
any shares or other securities of the  Corporation,  then in each such event the
Conversion Price shall be adjusted proportionately so that the holders of Series
A Preferred  Stock shall be entitled to receive the kind and number of shares or
other securities of the Corporation  which such holders would have owned or have
been  entitled to receive  after the  happening  of any of the events  described
above had such shares of Series A  Preferred  Stock been  converted  immediately
prior to the happening of such event (or any record date with respect  thereto).
Such  adjustment  shall be made  whenever  any of the events  listed above shall
occur.  An adjustment  made to the  Conversion  Price pursuant to this paragraph
5(e)(i)  shall become  effective  immediately  after the  effective  date of the
event.

          (f)      (i) In case of any merger of the Corporation with or into any
other corporation (other than a merger in which the Corporation is the surviving
or  continuing  corporation  and which does not result in any  reclassification,
conversion, or change of the outstanding shares of Common Stock and the Series A
Preferred Stock), then, unless the right to convert shares of Series A Preferred
Stock shall have  terminated,  as part of such merger lawful  provision shall be
made so that holders of Series A Preferred Stock shall thereafter have the right
but not the  obligation  to convert each share of Series A Preferred  Stock into
the kind and  amount of shares of stock  and/or  other  securities  or  property
receivable  upon such merger by a holder of the number of shares of Common Stock
into which such shares of Series A Preferred  Stock would have been  convertible
by the holder immediately prior to such consolidation or

                                       4
<PAGE>

merger.  Such  provision  shall also provide for  adjustments  which shall be as
nearly  equivalent  as may be  practicable  to the  adjustments  provided for in
paragraph (e) of this  paragraph 5. The foregoing  provisions of this  paragraph
5(f) shall similarly apply to successive mergers.

               (ii) In case of any  sale or  conveyance  to  another  person  or
entity of the property of the Corporation as an entirety, or substantially as an
entirety,  in connection with which shares or other  securities or cash or other
property  shall  be  issuable,   distributable,   payable,  or  deliverable  for
outstanding  shares of Common  Stock,  then,  unless the right to  convert  such
shares shall have terminated, lawful provision shall be made so that the holders
of  Series  A  Preferred  Stock  shall  thereafter  have the  right  but not the
obligation  to convert each share of the Series A Preferred  Stock into the kind
and  amount of shares of stock or other  securities  or  property  that shall be
issuable,  distributable,  payable,  or deliverable upon such sale or conveyance
with respect to each share of Common Stock immediately prior to such conveyance.

          (g) Whenever the number of shares to be issued upon  conversion of the
Series  A  Preferred  Stock is  required  to be  adjusted  as  provided  in this
paragraph 5, the  Corporation  shall  forthwith  compute the adjusted  number of
shares to be so issued and prepare a  certificate  setting  forth such  adjusted
conversion  amount and the facts upon which such  adjustment is based,  and such
certificate  shall  forthwith be filed with the Transfer  Agent for the Series A
Preferred  Stock and the Common Stock;  and the  Corporation  shall mail to each
Holder of record of Series A Preferred Stock notice of such adjusted  conversion
amount,  including the Conversion Price at the time in effect, and the number of
shares of Common Stock and the amount,  if any, of other  property  which at the
time would be received upon the conversion of the Series A Preferred Stock..

          (h) In case at any time the Corporation shall propose:

               (i) to pay any  dividend or  distribution  payable in shares upon
its Common Stock or make any  distribution  (other than cash  dividends)  to the
holders of its Common Stock; or

               (ii) to offer for subscription to the holders of its Common Stock
any additional shares of any class or any other rights; or

               (iii)  any  capital  reorganization  or  reclassification  of its
shares or the merger of the Corporation with another  corporation  (other than a
merger in which the  Corporation is the surviving or continuing  corporation and
which  does not  result in any  reclassification,  conversion,  or change of the
outstanding shares of Common Stock); or

               (iv) the voluntary dissolution,  liquidation or winding-up of the
Corporation;

then, and in any one or more of said cases, the Corporation shall cause at least
fifteen  (15)  days  prior  notice  of the  date on which  (A) the  books of the
Corporation  shall  close  or  a  record  be  taken  for  such  stock  dividend,
distribution,  or  subscription  rights,  or (B)  such  capital  reorganization,
reclassification,  merger,  dissolution,  liquidation  or winding-up  shall take
place,  as the case may be, to be mailed to the Transfer  Agent for the Series A
Preferred Stock and to the holders of record of the Series A Preferred Stock.

          (i) So long as any shares of Series A  Preferred  Stock  shall  remain
outstanding  and the Holders thereof shall have the right to convert the same in
accordance  with  provisions of this

                                       5
<PAGE>

paragraph 5, the Corporation  shall at all times reserve from the authorized and
unissued shares of its Common Stock a sufficient number of shares to provide for
such conversion.

          (j) The  Corporation  shall pay the amount of any and all issue  taxes
(but not income  taxes) which may be imposed in respect of any issue or delivery
of stock upon the conversion of any shares of Series A Preferred  Stock, but all
transfer  taxes and income taxes that may be payable in respect of any change of
ownership of Series A Preferred  Stock or any rights  represented  thereby or of
stock receivable upon conversion  thereof shall be paid by the person or persons
surrendering such stock for conversion.

          (k) The  Corporation  shall not, by  amendment of its  Certificate  of
Incorporation or through any reorganization,  transfer of assets, consolidation,
merger, dissolution,  issue or sale of securities or any other voluntary action,
avoid or seek to avoid the  observance or  performance of any of the terms to be
observed or performed hereunder by the Corporation but will at all times in good
faith assist in the carrying out of all the  provisions of this  Certificate  of
Designations  and in the  taking  of all  such  action  as may be  necessary  or
appropriate  in order to protect  the  conversion  rights of the  holders of the
Series A Preferred Stock against impairment.

     6. Voting  Rights.  Except as  otherwise  required  by law,  the holders of
Series A  Preferred  Stock  shall be  entitled  to notice  of any  stockholders'
meeting in accordance with the Bylaws of the  Corporation,  and to vote together
as a single class with the holders of the Common  Stock,  except that holders of
the Series A Preferred  Stock shall be  entitled to vote  separately  on (i) any
alteration of the rights of the Series A Preferred Stock; (ii) any change in the
authorized numbers of shares of the Series A Preferred Stock except as expressly
authorized  hereby  (other  than an  increase  in the  number  of the  Series  A
Preferred  Stock in  connection  with  shares to be issued  pursuant to offering
described in the  Memorandum),  (iii) the  redemption or repurchase of shares of
Series A Preferred  Stock; or (iv) with respect to those matters required by law
to be  submitted  to a  separate  class or series  vote.  Each share of Series A
Preferred Stock issued and  outstanding  shall have the number of votes equal to
the number of shares of Common Stock into which it is  convertible,  as adjusted
from  time to time  under  Section  4  hereof.  Fractional  votes  shall  not be
permitted  and any  fractional  voting rights  resulting  from the above formula
(after aggregating all shares into which shares of Series A Preferred Stock held
by each holder could be converted)  shall be rounded up to the next higher whole
number.

     7.  Status of  Converted  Stock.  In case any shares of Series A  Preferred
Stock shall be converted, redeemed or reacquired by the Corporation, such shares
shall resume the status of authorized but unissued shares of Preferred Stock and
shall no longer be designated as Series A Preferred Stock.

     8. Restriction on Additional Issuances.  The Corporation shall not, without
the prior  written  consent of the  Holders of at least  two-thirds  of the then
outstanding  shares of Series A Preferred Stock,  create or issue any additional
shares of preferred stock (other than the shares of Series A Preferred Stock, as
to which the Corporation shall be permitted to create or issue additional shares
of Series A Preferred  Stock in  connection  with the  offering  pursuant to the
Memorandum) or securities of the Corporation  which rank senior to or pari passu
with the Series A  Preferred  Stock with  respect  to  payment of  dividends  or
liquidation or other  distribution of assets,  other than debt securities issued
in connection with borrowings,  securities to financial  institutions or lessors
in connection  with  commercial  credit  arrangements,  equipment  financings or
similar transactions,  where the principal consideration for such transaction is
not  the  issuance  of such  securities,  direct  or  indirect,  from  financial
institutions or other persons by the  Corporation,  provided such securities and
borrowings do not have any equity features, including warrants, options or other
rights to purchase  capital stock, and are not convertible into capital stock of
the Corporation.

     9. Redemption. The Series A Preferred Stock is not redeemable.

                                       6
<PAGE>

     10. Preemptive Rights.  From the date hereof until such time as a Holder no
longer  holds  any  Series A  Preferred,  the  Corporation  shall  not  effect a
financing of its Common Stock or Common Stock equivalents  (i.e.,  securities of
the  Corporation  or any of its  subsidiaries  which  would  entitle  the holder
thereof to acquire at any time Common Stock,  including without limitation,  any
debt, preferred stock, rights, options,  warrants or other instrument that is at
any time convertible into or exchangeable for, or otherwise  entitles the holder
thereof to receive, Common Stock (such securities, "Capital Share Equivalents"))
(a  "Subsequent  Financing")  unless (i) the  Corporation  delivers to each such
Holder a written  notice at least 15 trading  days prior to the  closing of such
Subsequent  Financing (the  "Subsequent  Financing  Notice") of its intention to
effect such  Subsequent  Financing,  which  Subsequent  Financing  Notice  shall
describe in reasonable  detail the proposed terms of such Subsequent  Financing,
the amount of proceeds  intended to be raised  thereunder,  the person with whom
such  Subsequent  Financing  is proposed to be  effected,  and attached to which
shall be a term sheet or similar  document  relating  thereto and (ii) each such
Holder shall not have notified the Corporation in writing by 5:00 p.m. (New York
City time) on the tenth (10th)  trading day after its receipt of the  Subsequent
Financing  Notice of its  willingness  to purchase  (or to cause its designee to
purchase),   subject  to  completion  of  mutually   acceptable   documentation,
securities in such  financing in an amount equal to up to that amount  necessary
such  that  immediately  following  such  Subsequent  Financings,   such  Holder
beneficially  owns the same percentage of Common Stock,  on an as-converted  and
fully diluted basis that such Holder  beneficially  owned  immediately  prior to
such Subsequent Financing. Such Holder's participation in a Subsequent Financing
shall be on the same terms set forth in the Subsequent  Financing Notice. If one
or more  Holders  shall  fail to so notify the  Corporation  in writing of their
willingness  to participate in the Subsequent  Financing,  the  Corporation  may
effect the remaining  portion of such  Subsequent  Financing on the terms and to
the persons set forth in the  Subsequent  Financing  Notice;  provided  that the
Corporation must provide each Holder with a second Subsequent  Financing Notice,
and each  Holder  will again have the  preemptive  right set forth above in this
Section, if the Subsequent Financing subject to the initial Subsequent Financing
Notice  is not  consummated  for any  reason  on the  terms  set  forth  in such
Subsequent Financing Notice within 60 trading days after the date of the initial
Subsequent Financing Notice.

     Notwithstanding  the foregoing,  this Section 10 shall not apply in respect
of the  issuance  of (a)  shares of  Common  Stock or  options  or  warrants  to
employees, consultants,  advisors, officers or directors of the Corporation that
have been approved by the Board of Directors or issued  pursuant to any stock or
option  plan duly  adopted by the Board of  Directors  of the  Corporation,  (b)
securities  upon  anti-dilution  adjustments  under any  securities,  options or
warrants  issued and outstanding on the Original Issue Date, and securities upon
the exercise of or conversion of any convertible securities, options or warrants
issued and outstanding on the Original Issue Date, provided that such securities
have not been  amended  since such  date,  (c)  securities  in  connection  with
acquisitions  or  strategic  investments  (including,  without  limitation,  any
licensing or distribution arrangements),  the primary purpose of which is not to
raise capital, (d) securities to financial institutions or lessors in connection
with   commercial   credit   arrangements,   equipment   financings  or  similar
transactions,  where the principal consideration for such transaction is not the
issuance of such  securities or (e)  securities  issued in  connection  with the
financing described in the Memorandum.

     In witness whereof,  SmartServ Online,  Inc. has caused this Certificate to
be executed by Robert M. Pons, its President, this 13th day of February, 2004.

                                SMARTSERV ONLINE, INC.

                                By: /s/ Robert M. Pons
                                   ---------------------------------------------
                                   Name:  Robert M. Pons
                                   Title:   President

                                       7
<PAGE>
                                     AMENDED
                        CERTIFICATE OF THE DESIGNATIONS,
                    VOTING POWERS, PREFERENCES, LIMITATIONS,
                        RESTRICTIONS AND RELATIVE RIGHTS
                                       OF
                      SERIES A CONVERTIBLE PREFERRED STOCK
                            OF SMARTSERV ONLINE, INC.

                            (CERTIFICATE OF INCREASE)

          PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW OF THE
                                STATE OF DELAWARE
                                     * * * *


     SmartServ  Online,   Inc.,  a  Delaware  corporation  (the  "Corporation"),
pursuant  to  resolutions  duly  adopted  by  the  Board  of  Directors  of  the
Corporation by unanimous  written  consent in accordance  with Section 141(f) of
the General  Corporation Law of the State of Delaware  ("DGCL"),  dated February
27, 2004, does hereby certify:

          FIRST:  That the Corporation  filed a Certificate of Designation  (the
"Series A Certificate of Designation") on February 13, 2004, designating 500,000
shares  of the  authorized  preferred  stock of the  Corporation  as  "Series  A
Convertible Preferred Stock."

          SECOND: That the Series A Certificate of Designation is hereby amended
to  increase  the number of shares  constituting  such  series  from  500,000 to
870,000.

          THIRD:  That this amended Series A Certificate of Designation has been
duly  authorized  and directed by  resolutions  of the Board of Directors of the
Corporation in accordance with the provisions of Section 151 of the DGCL.

     IN WITNESS WHEREOF, SmartServ Online, Inc. has caused this amended Series A
Certificate of  Designation to be signed by Robert M. Pons, its President,  this
27th day of February, 2004.

                                SMARTSERV ONLINE, INC.



                                By: /s/ Robert M. Pons
                                   ---------------------------------------------
                                   Name: Robert M. Pons
                                   Title:  President

<PAGE>

                            CERTIFICATE OF CORRECTION
                                       TO
                             CERTIFICATE OF INCREASE
                                       OF
                             SMARTSERV ONLINE, INC.


     SMARTSERV ONLINE, INC., a Delaware corporation (the "Corporation"),  acting
pursuant to Section 103(f) of the Delaware  General  Corporation Law in order to
correct a defect in that certain Certificate of Increase of Shares Designated as
Series A Convertible  Preferred Stock (the  "Certificate of Increase")  filed on
February 27, 2004, hereby certifies as follows:

     1. On February 13,  2004,  the  Corporation  filed its  Certificate  of the
Designations,  Preferences  and  Rights of the  Series A  Convertible  Preferred
Stock,  designating  500,000  shares  of $.01 par  value  Series  A  Convertible
Preferred Stock.

     2. Thereafter, the Corporation's Board of Directors approved an increase in
the  number  of  shares  of  Series  A  Convertible  Preferred  Stock,  and  the
Corporation's  president signed and filed with the Delaware Secretary of State a
Certificate of Increase increasing the number of authorized Series A Convertible
Preferred Stock from 500,000 to 870,000.

     3. The  Certificate of Increase is defective  because the number  "870,000"
should have read "874,824" instead,  which corrected number represents the total
number of shares of Series A Convertible Preferred Stock authorized by the Board
of Directors.

     4. The  defect  in the  Certificate  of  Increase  is hereby  corrected  by
deleting  the  number  "870,000"  from  the  4th  line of the  second  paragraph
beginning with the word "That" and replacing it with the number 874,824.

          IN WITNESS  WHEREOF,  the undersigned has executed this Certificate of
Correction as of the 10th day of March 2004.

                                        SMARTSERV ONLINE, INC.


                                        By: /s/ Robert M. Pons
                                           -------------------------------------
                                           Name: Robert M. Pons
                                           Title:  President
<PAGE>

                                     AMENDED
                        CERTIFICATE OF THE DESIGNATIONS,
                    VOTING POWERS, PREFERENCES, LIMITATIONS,
                        RESTRICTIONS AND RELATIVE RIGHTS
                                       OF
                      SERIES A CONVERTIBLE PREFERRED STOCK
                            OF SMARTSERV ONLINE, INC.

                            (CERTIFICATE OF INCREASE)

          PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW OF THE
                                STATE OF DELAWARE
                                     * * * *

     SmartServ  Online,   Inc.,  a  Delaware  corporation  (the  "Corporation"),
pursuant  to  resolutions  duly  adopted  by  the  Board  of  Directors  of  the
Corporation at a meeting held on March 10, 2004, does hereby certify:

1.   That the  Corporation  filed a Certificate  of  Designation  (the "Series A
Certificate of Designation") on February 13, 2004, designating 500,000 shares of
the  authorized  preferred  stock of the  Corporation  as "Series A  Convertible
Preferred Stock."

2.   That the Corporation filed a Certificate of Increase ("First Certificate of
Increase")  on  February  27,  2004 in order to  increase  the  number of shares
constituting such series from 500,000 to 870,000.

3.   That the  Corporation  filed a Certificate of Correction  ("Certificate  of
Correction") to its First  Certificate of Increase on March 11, 2004 in order to
correct an error contained in the First Certificate of Increase which improperly
referenced  the total number of shares  authorized  by the Board of Directors as
870,000 when it should have referenced the total number of shares  authorized by
the Board of Directors to be 874,824.

4.   That the  Corporation  desires to further  increase the number of shares of
Series A Convertible Preferred Stock authorized by the Board of Directors in its
Series A  Certificate  of  Designation,  increased by its First  Certificate  of
Increase and thereafter corrected by its Certificate of Correction, from 874,824
to 876,491.

5.   That this Second Certificate of Increase of Series A Convertible  Preferred
Stock has been duly  authorized  and  directed  by  resolutions  of the Board of
Directors of the Corporation in accordance with the provisions of Section 151 of
the DGCL.

     IN WITNESS WHEREOF, SmartServ Online, Inc. has caused this amended Series A
Certificate of  Designation to be signed by Robert M. Pons, its President,  this
12th day of March, 2004.

                                        SMARTSERV ONLINE, INC.


                                        By: /s/ Robert M. Pons
                                           -------------------------------------
                                        Name:  Robert M. Pons
                                        Title:   President