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THIS WARRANT AND ANY SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR
UNDER ANY STATE SECURITIES LAW AND SUCH SECURITIES MAY NOT BE PLEDGED, SOLD,
ASSIGNED, HYPOTHECATED, OR OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAW OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE
COMPANY OR COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION
ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE PLEDGED,
SOLD, ASSIGNED, HYPOTHECATED, OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT AND SHARES ISSUABLE UPON THE EXERCISE HEREOF IS
RESTRICTED AS DESCRIBED HEREIN.
WARRANT CERTIFICATE TO PURCHASE UP TO 3,000,000 SHARES
OF COMMON STOCK
OF
iPARTY CORP.
THIS CERTIFIES THAT, FOR VALUE RECEIVED, and in accordance with that certain
Fulfillment Agreement of even date herewith by and between iParty Corp. and
Taymark, a division of Taylor Corporation, a Minnesota Corporation ("Taymark")
(the "Fulfillment Agreement"), Taymark is the owner of one Warrant (the
"Warrant") which shall initially entitle Taymark to purchase, subject to the
terms and conditions set forth in this Warrant Certificate, up to Three Million
(3,000,000) shares of common stock, par value $.001 per share (each, a
"Conversion Share" and collectively, the "Warrant Shares"), of iParty Corp., a
Delaware corporation (the "Company"), from time to time as provided herein,
commencing October 1, 1999, until 5:00 p.m., New York City time on October 1,
2002 (the "Expiration Date").
1. (a) Subject to the acceleration and termination provisions
contained in Section 9 hereof and the adjustment provisions contained in Section
8 hereof, this Warrant is exercisable by Taymark, as to the following number of
Conversion Shares on the following dates: (i) as to 500,000 Conversion Shares
commencing as of October 1, 1999; (ii) as to an additional 1,000,000 Conversion
Shares commencing as of January 1, 2000; (iii) as to an additional 750,000
Conversion Shares commencing as of July 1, 2000; and (iv) as to the remaining
750,000 Conversion Shares commencing as of January 1, 2001. Subject to the
foregoing, this Warrant is exercisable upon the presentation and surrender of
this Warrant Certificate with the Form of Election attached hereto duly
executed, at the offices of the Company, accompanied by payment of $3.50 per
Conversion Share subject to adjustment (the "Purchase Price"), in lawful money
of the United States of America in cash or by check made payable to the Company.
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2. In the event of certain contingencies provided for herein,
the Purchase Price and the number of Conversion Shares subject to purchase upon
the exercise of the Warrant represented hereby are subject to modification or
adjustment.
3. The Warrant represented hereby is exercisable at the option
of Taymark, but no fractional Conversion Shares will be issued. In the case of
the exercise as to less than all of the Warrant Shares, the Company shall cancel
this Warrant Certificate upon the surrender hereof and shall execute and deliver
a new Warrant Certificate or Warrant Certificates of like tenor, for the balance
of the Warrant Shares.
4. Neither this Warrant nor any Conversion Shares issuable
upon the exercise of this Warrant have been registered under the securities act
of 1933, as amended (the "Act"), nor under any state securities law and such
securities may not be pledged, sold, assigned, hypothecated, or otherwise
transferred until (i) a registration statement with respect thereto is effective
under the Act and any applicable state securities law or (ii) the Company
receives an opinion of counsel to the Company or counsel to Taymark of such
securities, which counsel and opinion are reasonably satisfactory to the
Company, that such securities may be pledged, sold, assigned, hypothecated, or
transferred without an effective registration statement under the Act and
applicable state securities laws. Upon exercise of this Warrant, in whole or in
part, each certificate issued representing Conversion Shares underlying this
Warrant shall, if then applicable, bear a legend to the foregoing effect.
5. This Warrant Certificate is exchangeable, upon the
surrender hereof by Taymark at the corporate office of the Company, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrant Shares covered by the Warrant, each of such new
Warrant Certificates to represent such number of Warrant Shares covered by the
Warrant as shall be designated by Taymark at the time of such surrender. Upon
due presentment and payment of any tax or other charge imposed in connection
therewith or incident thereto, for registration of transfer of this Warrant
Certificate at such office, a new Warrant Certificate or Warrant Certificates
representing an equal aggregate number of Warrant Shares covered by the Warrant
will be issued to the transferee in exchange therefor.
6. Prior to the exercise of the Warrant represented hereby,
Taymark shall not be entitled to any rights of a stockholder of the Company by
virtue of this Warrant, including, without limitation, the right to vote or to
receive dividends or other distributions, and shall not be entitled to receive
any notice of any proceedings of the Company, except as provided herein.
7. The Company shall at all times reserve and keep available
out of its authorized and unissued shares of common stock, solely for the
purpose of providing for the exercise of the rights to purchase all Warrants
Shares granted pursuant to the Warrant, such number of Conversion Shares as
shall then be issuable upon the exercise of the Warrant.
8. The Purchase Price in effect at any time and the number and
kind of securities issuable upon the exercise of this Warrant shall be subject
to adjustment from time to time upon the happening of certain events, as
follows:
(a) In case the Company shall (i) declare a dividend or
make a distribution on its outstanding common shares, (ii) subdivide or
reclassify its outstanding common shares into a greater number of shares, or
(iii) combine or reclassify its outstanding common shares into a smaller number
of shares, the Purchase Price in effect at the time of the
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record date for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that it shall
equal the price determined by multiplying the Purchase Price by a fraction, the
denominator of which shall be the number of common shares outstanding after
giving effect to such action, and the numerator of which shall be the number of
common shares outstanding immediately prior to such action. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) Upon each adjustment of the Purchase Price pursuant to
the provisions of this Section 8, the number of Warrant Shares issuable upon the
exercise at the adjusted Purchase Price of the Warrant shall be adjusted to the
nearest number of whole Shares by multiplying a number equal to the Purchase
Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of the Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Purchase Price.
(c) In case of any consolidation of the Company with, or
merger of the Company into, another corporation (other than a consolidation or
merger which does not result in any reclassification or change of the
outstanding common shares), the corporation formed by such consolidation or
merger shall execute and deliver to the Holder a supplemental warrant agreement
providing that the Holder of the Warrant shall have the right thereafter (until
the expiration of such Warrant) to receive, upon exercise of such Warrant, the
kind and amount of shares of stock and other securities and property receivable
upon such consolidation or merger by a holder of the number of Conversion Shares
for which such Warrant might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental warrant agreement
shall provide for adjustments which shall be identical to the adjustments
provided in this Section 8. The above provision of this paragraph shall
similarly apply to successive consolidations or mergers.
(d) No adjustment in the number of Warrant Shares shall be
required if such adjustment is less than one; provided, however, that any
adjustments which by reason of this paragraph are not required to be made shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 8 shall be made to the nearest one-thousandth of
a share.
(e) In any case in which this Section 8 shall require that
an adjustment in the number of Warrant Shares be made effective as of a record
date for a specified event, the Company may elect to defer, until the occurrence
of such event, issuing to the Holder, if the Holder exercised the Warrant after
the record date, the Warrant Shares, if any, issuable upon such exercise over
and above the Warrant Shares, if any, issuable upon such exercise prior to such
adjustment; provided, however, that the Company shall deliver to the Holder a
due bill or other appropriate instrument evidencing the Holder's right to
receive such additional Warrant Shares upon the occurrence of the event
requiring such adjustment.
(f) Whenever there shall be an adjustment as provided in
this Section 8, the Company shall promptly cause written notice thereof to be
sent by certified mail, postage prepaid, to the Holder, at its address as it
shall appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares issuable upon
the exercise of the Warrant if such Warrant were exercisable on the date of such
notice, and setting forth a brief statement of the facts requiring such
adjustment and the computation thereof,
<PAGE>
which officer's certificate shall be conclusive evidence of the correctness of
any such adjustment absent manifest error.
9. Notwithstanding anything to the contrary contained herein,
this Warrant shall be subject to the following provisions:
(a) If, prior to the Expiration Date, the Fulfillment
Agreement is terminated by the Company in accordance with the provisions of
Sections 11.1.1, 11.1.2, 11.1.3, or 11.1.4 thereof, then this Warrant shall
immediately terminate as to any and all such Conversion Shares which are not
exercisable on such date, and in addition, if so requested by the Company,
Taymark shall deliver this Warrant to the Company in exchange for a cash payment
equal to the greater of (i) the product of the Purchase Price then in effect and
the number of Conversion Shares as to which this Warrant is then exercisable, or
(ii) the product of (y) the number of Conversion Shares as to which this Warrant
is then exercisable and (z) the difference between the fair market value of the
common shares of the Company and Purchase Price on such date.
(b) If, prior to the Expiration Date, the Company enters
into an agreement to (i) sell all or substantially all of its assets or capital
stock, or (ii) merge with an entity that is not a subsidiary of the Company in a
transaction in which the Company is not the surviving entity, then all of the
Warrant Shares which not yet then exercisable shall become exercisable upon the
closing of any such transaction.
10. In case at any time the Company shall propose
(a) to pay any dividend or make any distribution on
common shares in common shares or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of common shares; or
(b) to issue any rights, warrants, or other securities to
all holders of Shares entitling them to purchase any additional common shares or
any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of
outstanding Shares, or any consolidation or merger as described in Section 8; or
(d) to effect any liquidation, dissolution,or winding-up
of the Company, then, and in any one or more of such cases,
the Company shall give written notice thereof, by registered mail, postage
prepaid, to the Holder at the Holder's address as it shall appear in the Warrant
Register, of (i) the date as of which the holders of record of common shares to
be entitled to receive any such dividend, distribution, rights, warrants, or
other securities are to be determined, or (ii) the date on which any such
reclassification, change of outstanding common shares, consolidation, merger,
liquidation, dissolution, or winding-up is expected to become effective, and the
date as of which it is expected that holders of record of common shares shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding
<PAGE>
shares, consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up.
11. The issuance of any Conversion Shares or other securities
upon the exercise of the Warrant, and the delivery of certificates or other
instruments representing such Conversion Shares or other securities, shall be
made without charge to the Holder for any tax or other charge in respect of such
issuance, other than applicable transfer taxes. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder, and the Company shall not be required to issue or deliver any
such certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
12. Prior to due presentment for registration of transfer
hereof, the Company may deem and treat Taymark as the absolute owner hereof and
of the Warrant represented hereby (notwithstanding any notations of ownership or
writing hereon made by anyone other than a duly authorized officer of the
Company) for all purposes and shall not be affected by any notice to the
contrary.
13. This Warrant Certificate and the Fulfillment Agreement
constitute the final and complete understandings and agreements of the parties
concerning the subject matter hereof, superseding all prior proposals,
negotiations and agreements concerning the subject matter hereof.
14. This Warrant Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to conflicts of laws.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed, manually or in facsimile by one of its officers
thereunto duly authorized and a facsimile of its corporate seal to be imprinted
hereon.
Dated: July 8, 1999
iPARTY CORP.
By: /s/ Sal Perisano
-------------------------
Name: Sal Perisano
Title: Chief Executive Officer
ACCEPTED AND AGREED
TAYMARK, a Division of TAYLOR CORPORATION
By: Paul Griffths
--------------------------------
Name: Paul Griffths
Title: President
<PAGE>
FORM OF ELECTION
To Be Executed by Taymark
in Order to Exercise Warrant
The undersigned hereby irrevocably elects to purchase _________ Conversion
Shares subject to the Warrant represented by this Warrant Certificate, and
requests that certificates for such securities shall be issued in
name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
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(please print or type name and address)and be delivered to
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(please print or type name and address)
and if such number of Conversion Shares shall not be all the Conversion Shares
covered by the Warrant, that a new Warrant Certificate for the balance of the
Conversion Shares covered by the Warrant be registered in the name of, and
delivered to, Taymark at the address stated below.
