As filed with the Securities and Exchange Commission on June 8, 2009
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
iPARTY CORP.
(Exact name of registrant as specified in its charter)
Delaware 76-0547750
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation of organization)
270 Bridge Street, Suite 301
Dedham, Massachusetts 02026
(Address of Principal Executive Offices)
iParty Corp.
2009 Stock Incentive Plan
(Full title of the plan)
Sal Perisano
Chairman of the Board and Chief Executive Officer
iParty Corp.
270 Bridge Street, Suite 301
Dedham, Massachusetts 02026
(Name and address of agent for service)
(781) 329-3952
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer |_| Accelerated filer |_|
Non-accelerated filer |_| Smaller reporting company |X|
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
===========================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered (2) offering price aggregate registration fee (4)
registered (1) per share (3) offering price (3)
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Common Stock, 1,085,000(a) $0.11(a) $119,350(a) $6.66
par value $.001 per share 237,894(b) $0.145(b) $ 34,495(b) $1.93
------------- ---------- ------------ ------
Total: $8.59
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(1) Includes Series G Junior Preferred Stock Purchase Rights attached thereto,
for which no separate fee is payable pursuant to Rule 457(i).
(2) This Registration Statement covers shares of Common Stock of iParty Corp.
("Common Stock") which may be offered or sold pursuant to the iParty Corp.
2009 Stock Incentive Plan. This Registration Statement shall also cover any
additional shares of Common Stock that may be issued upon stock splits,
stock dividends or similar transactions in accordance with Rule 416(c)
under the Securities Act of 1933.
(3) Pursuant to Rule 457(c) and (h) of the Securities Act of 1933, the amount
of the proposed maximum offering price per share, proposed maximum
aggregate offering price and the amount of the registration fee are based
on (a) the option exercise price of $0.11 per share for the 1,085,000
shares issuable upon exercise of currently outstanding options under the
2009 Stock Incentive Plan and (b) the average of the high and low sales
prices per share of iParty Corp. Common Stock on June 5, 2009, as reported
on the NYSE Amex with respect to the other 237,894 shares of Common Stock
issuable under 2009 Stock Incentive Plan registered herein.
(4) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as
follows: proposed maximum aggregate offering price multiplied by .0000558.
INTRODUCTION
This Registration Statement on Form S-8 (the "Registration Statement") is
filed by iParty Corp., a Delaware corporation (the "Registrant"), relating to up
to 1,322,894 shares of its common stock, par value $0.001 per share (the "Common
Stock"), issuable to eligible employees, officers, directors, consultants,
advisors and other service providers of the Registrant and its subsidiaries
under the Registrant's 2009 Stock Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Documents containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Plan as specified by Rule 428(b)(1) of
the Securities Act of 1933 (the "Securities Act"). In accordance with the
instructions of Part I of Form S-8, such documents will not be filed with the
Securities and Exchange Commission (the "SEC") either as part of the
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. These documents and the documents
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute the prospectus as required under Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant with the
SEC, are hereby incorporated by reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 27, 2008, filed with the SEC on March 23, 2009;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") since the
end of the fiscal year covered by the Registrant's Annual Report
referred to in (a) above;
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 001-15611)
filed with the SEC on January 11, 2000 (including any amendment or
report filed for the purpose of updating such description); and
(d) The description of the Registrant's Series G junior preferred stock
purchase rights contained in its Registration Statement on Form 8-A
(File No. 001-15611) filed with the SEC on November 16, 2001
(including any amendment or report filed for the purpose of updating
such description).
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Unless expressly incorporated into this Registration Statement, a report
furnished on Form 8-K prior or subsequent to the date hereof shall not be
incorporated by reference into this Registration Statement, except as to
specific sections of such statements as set forth therein. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement.
We will furnish without charge to you, upon written or oral request, a copy
of any or all of the documents described above, except for exhibits to those
documents, unless the exhibits are specifically incorporated by reference into
those documents. Requests for copies should be addressed to:
iParty Corp.
270 Bridge Street, Suite 301
Dedham, Massachusetts 02026
Attention: Investor Relations
Telephone: (781) 329-3952
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative (other than an action by or
in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses actually and
reasonably incurred in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
As permitted by Section 102(b)(7) of the DGCL, our certificate of
incorporation, as amended and currently in effect, provides that our directors
shall not be liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director, provided that it does not eliminate or limit the
liability of any director (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 Section 174 of the DGCL (relating to unlawful payment of dividends
and unlawful stock purchase and redemption), or (iv) for any transaction from
which the director derived an improper personal benefit. Our certificate of
incorporation further provides that we shall indemnify our directors and
officers to the full extent then permitted by law.
The Registrant has obtained director and officer liability insurance under
which, subject to the limitations of such policies, coverage will be provided
(a) to its directors and officers against loss arising from claims made by
reason of breach of fiduciary duty or other wrongful acts as a director or
officer, including claims relating to public securities matters and (b) to the
registrant with respect to payments which may be made by the registrant to these
officers and directors pursuant to the above indemnification provision or
otherwise as a matter of law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibit
Number Exhibit
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3.1(i) Restated Certificate of Incorporation of WSI Acquisition
Corp. and Certificate of Merger by iParty Corp. into WSI
Acquisition Corp. (incorporated herein by reference to the
Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507) as filed with the SEC on March 8,
1999).
3.1(ii) Certificate of Designation of Series A Preferred Stock of
WSI Acquisitions, Corp. (incorporated herein by reference to
the Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507), as filed with the SEC on March
8, 1999)
3.1(iii) Certificate of Designation of Series B Preferred Stock of
iParty Corp. (incorporated herein by reference to Amendment
No. 2 to Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507), as filed with the SEC on October
19, 1999)
3.1(iv) Certificate of Designation of Series C Preferred Stock of
iParty Corp. (incorporated herein by reference to Amendment
No. 2 to Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507), as filed with the SEC on October
19, 1999)
3.1(v) Certificate of Designation of Series D Preferred Stock of
iParty Corp. (incorporated herein by reference to
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1999, as filed with the SEC on April 14, 2000)
3.1(vi) Certificate of Designation of Series E Preferred Stock of
iParty Corp. (incorporated herein by reference to
Registrant's Current Report on Form 8-K, as filed with the
SEC on August 30, 2000)
3.1(vii) Certificate of Correction to Certificate of Designation of
Series E Preferred Stock of iParty Corp. (incorporated
herein by reference to Registrant's Annual Report on Form
10-KSB for the year ended December 28, 2002, as filed with
the SEC on March 28, 2003)
3.1(viii) Certificate of Designation of Series F Preferred Stock of
iParty Corp. (incorporated herein by reference to
Registrant's Current Report on Form 8-K, as filed with the
SEC on September 15, 2000)
3.1(ix) Certificate of Designation of Series G Junior Preferred
Stock of iParty Corp. (incorporated herein by reference from
Registrant's Current Report on Form 8-K, as filed with the
SEC on November 16, 2001)
3.2 Amended and Restated By-laws of the Registrant (incorporated
herein by reference to Exhibit 3.1(ii) to the Registrant's
Current Report on Form 8-K, as filed with the SEC on
December 10, 2007).
4.1 Rights Agreement between iParty Corp. and Continental Stock
Transfer & Trust, as Rights Agent (incorporated herein by
reference to Registrant's Current Report on Form 8-K, as
filed with the SEC on November 16, 2001)
4.2 Amendment to Rights Agreement between iParty Corp. and
Continental Stock Transfer & Trust, as Rights Agent, dated
September 15, 2006 (incorporated herein by reference to
Registrant's Current Report on Form 8-K, as filed with the
SEC on September 18, 2006)
*5.1 Opinion of Posternak Blankstein & Lund LLP
10.1 iParty Corp. 2009 Stock Incentive Plan (incorporated herein
by reference to Appendix A to the Registrant's Proxy
Statement on Schedule 14A, as filed with the SEC on April
24, 2009)
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Posternak Blankstein & Lund LLP (included within
Exhibit 5.1)
24.1 Power of Attorney (included with signature pages)
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* Filed herewith.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act if,
in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs ( a) (1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the town of Dedham, Commonwealth of Massachusetts on June 8,
2009.
iPARTY CORP.
By: /s/ Sal Perisano
--------------------------------
Name: Sal Perisano
Title: Chairman of the Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated.
Each person, in so signing, also hereby makes, constitutes and appoints Sal
Perisano and David Robertson, and each of them, each acting alone, his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in his or her name, place and stead, in any
and all capacities in connection with this Registration Statement on Form S-8,
including without limiting the generality of the foregoing, to sign the
Registration Statement, including any and all stickers and post-effective
amendments to the Registration Statement, and to sign any and all additional
registration statements that are filed pursuant to Rule 462(b) under the
Securities Act, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the SEC and any applicable securities
exchange or securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute(s), may lawfully do or cause
to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Sal Perisano Chief Executive Officer and Chairman of the
------------------------- Board (principal executive officer) June 8, 2009
/s/ David Robertson Chief Financial Officer (principal financial
------------------------- officer and principal accounting officer) June 8, 2009
David Robertson
/s/ Daniel DeWolf
------------------------- Director June 8, 2009
Daniel DeWolf
/s/ Frank Haydu
------------------------- Director June 8, 2009
Frank Haydu
/s/ Robert Jevon
------------------------- Director June 8, 2009
Robert Jevon
------------------------- Director June 8, 2009
Eric Schindler
/s/ Joseph Vassalluzzo
------------------------- Director June 8, 2009
Joseph Vassalluzzo
iPARTY CORP.
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------- -------
3.1(i) Restated Certificate of Incorporation of WSI Acquisition
Corp. and Certificate of Merger by iParty Corp. into WSI
Acquisition Corp. (incorporated herein by reference to the
Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507) as filed with the SEC on March 8,
1999).
3.1(ii) Certificate of Designation of Series A Preferred Stock of
WSI Acquisitions, Corp. (incorporated herein by reference to
the Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507), as filed with the SEC on March
8, 1999)
3.1(iii) Certificate of Designation of Series B Preferred Stock of
iParty Corp. (incorporated herein by reference to Amendment
No. 2 to Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507), as filed with the SEC on October
19, 1999)
3.1(iv) Certificate of Designation of Series C Preferred Stock of
iParty Corp. (incorporated herein by reference to Amendment
No. 2 to Registrant's Registration Statement on Form 10-SB
(Registration No. 0-25507), as filed with the SEC on October
19, 1999)
3.1(v) Certificate of Designation of Series D Preferred Stock of
iParty Corp. (incorporated herein by reference to
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1999, as filed with the SEC on April 14, 2000)
3.1(vi) Certificate of Designation of Series E Preferred Stock of
iParty Corp. (incorporated herein by reference to
Registrant's Current Report on Form 8-K, as filed with the
SEC on August 30, 2000)
3.1(vii) Certificate of Correction to Certificate of Designation of
Series E Preferred Stock of iParty Corp. (incorporated
herein by reference to Registrant's Annual Report on Form
10-KSB for the year ended December 28, 2002, as filed with
the SEC on March 28, 2003)
3.1(viii) Certificate of Designation of Series F Preferred Stock of
iParty Corp. (incorporated herein by reference to
Registrant's Current Report on Form 8-K, as filed with the
SEC on September 15, 2000)
3.1(ix) Certificate of Designation of Series G Junior Preferred
Stock of iParty Corp. (incorporated herein by reference from
Registrant's Current Report on Form 8-K, as filed with the
SEC on November 16, 2001)
3.2 Amended and Restated By-laws of the Registrant (incorporated
herein by reference to Exhibit 3.1(ii) to the Registrant's
Current Report on Form 8-K, as filed with the SEC on
December 10, 2007).
4.1 Rights Agreement between iParty Corp. and Continental Stock
Transfer & Trust, as Rights Agent (incorporated herein by
reference to Registrant's Current Report on Form 8-K, as
filed with the SEC on November 16, 2001)
4.2 Amendment to Rights Agreement between iParty Corp. and
Continental Stock Transfer & Trust, as Rights Agent, dated
September 15, 2006 (incorporated herein by reference to
Registrant's Current Report on Form 8-K, as filed with the
SEC on September 18, 2006)
*5.1 Opinion of Posternak Blankstein & Lund LLP
10.1 iParty Corp. 2009 Stock Incentive Plan (incorporated herein
by reference to Appendix A to the Registrant's Proxy
Statement on Schedule 14A, as filed with the SEC on April
24, 2009)
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Posternak Blankstein & Lund LLP (included within
Exhibit 5.1)
24.1 Power of Attorney (included with signature pages)
--------------------
* Filed herewith.