forms_8.htm
As filed with the Securities and
Exchange Commission on February 5, 2010
Registration
No.
333¬
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________________________
1-800-FLOWERS.COM,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization)
|
11-3117311
(I.R.S.
Employer
Identification
Number)
|
One Old Country Road, Carle
Place, New York 11514
(Address
of principal executive offices)(Zip code)
1-800-FLOWERS.COM.
Inc. 2003 Long Term Incentive and Share Award Plan,
as
amended and restated as of October 22, 2009
(full
title of the Plan)
James F.
McCann
1-800-Flowers.com,
Inc.
One Old
Country Road
Carle
Place, New York 11514
(Name and
address of agent for service)
(516)
237-6000
(Telephone
number, including area code, of agent for service)
_____________________________
copy
to:
William
M. Hartnett, Esq.
Cahill
Gordon & Reindel llp
80 Pine
Street
New York,
New York 10005
(212)
701-3000
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 o
|
Accelerated
filer x
|
Non-accelerated
filer o
(Do
not check if a smaller reporting company)
|
Smaller
reporting company o
|
_____________________________
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be
Registered
|
Amount
to be
Registered
|
Proposed
Maximum
Offering
Price Per Share (2)
|
Proposed
Maximum
Aggregate
Offering Price (2)
|
Amount
of
Registration
Fee (2)
|
Class
A Common Stock
|
7,143,686
shares (1)
|
$2.03
|
$14,501,682.58
|
$1,033.97
|
(1) This
Registration Statement registers 7,143,686 shares of common stock under
1-800-Flowers.com, Inc.’s 2003 Long Term Incentive and Share Award Plan, as
amended and restated as of October 22, 2009 (the “2003 Plan”). In
addition, pursuant to Rule 416(a) under the Securities Act of 1933 (the
“Securities Act”), this Registration Statement also covers any additional shares
of the Registrant’s common stock that become issuable under the 2003 Plan by
reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without receipt of consideration that increases the number
of outstanding shares of the Registrant’s common stock.
(2) Computed
in accordance with Rule 457(h) under the Securities Act by averaging the high
and low sales prices of the Registrant’s Class A Common Stock reported on the
Nasdaq Global Select Market for February 3, 2010.
EXPLANATORY
NOTE
1-800-Flowers.com,
Inc. (“1-800-Flowers.com” or the “Registrant”) has prepared this Registration
Statement in accordance with the requirements of Form S-8 under the Securities
Act in connection with an amendment to the 2003 Plan (approved by shareholders
of the Registrant on December 3, 2009), which increased the number of shares of
Class A Common Stock authorized for issuance under the 2003 Plan and updated the
list of performance criteria under the 2003 Plan. The shares of Class
A Common Stock previously available for issuance or transfer under the 2003 Plan
are covered by a Registration Statement on Form S-8 (Registration No.
333-119999) previously filed by the Registrant on October 27, 2004 (the
“Original Registration Statement”), which registers 7,500,000 shares of Class A
Common Stock. Pursuant to General Instruction E to Form S-8, the
contents of the Original Registration Statement, including the periodic and
current reports that we filed with the Commission after the effectiveness of the
Original Registration Statement, are incorporated herein by reference except to
the extent supplemented, amended or superseded by the information set forth
herein. Any items in the Original Registration Statement not
expressly changed hereby shall be as set forth in the Original Registration
Statement.
The
number of shares that may be issued under the 2003 Plan has increased by
7,143,686. As amended, the aggregate number of shares of Class A
Common Stock that may be issued under the 2003 Plan is 14,643,686, consisting of
the sum of (i) 7,500,000 shares registered under the Original Registration
Statement; plus (ii) the 1,688,870 additional shares equal to the number of
shares subject to forfeited awards that were originally granted under the
Registrant’s 1999 Stock Incentive Plan (the “1999 Plan”) prior to December 3,
2003; plus (iii) up to 5,454,816 additional shares equal to the number of shares
subject to outstanding awards granted under the 1999 Plan which may be forfeited
in the future.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. DOCUMENTS INCORPORATED BY
REFERENCE.
The
following documents have been filed by the Registrant with the Securities and
Exchange Commission (the “Commission”) and are hereby incorporated by reference
in this Registration Statement:
(a) The
Registrant’s annual report on Form 10-K for the fiscal year ended June 28,
2009, filed with the Commission on September 11, 2009;
(b) The
Registrant’s quarterly report on Form 10-Q for the quarter ended
September 27, 2009, filed with the Commission on November 6, 2009, and
Amendment No. 1 thereto, filed with the Commission on December 18,
2009;
(c) The
Registrant’s quarterly report on Form 10-Q for the quarter ended
December 27, 2009, filed with the Commission on February 5,
2010;
(d) The
Registrant’s current reports on Form 8-K dated October 22, 2009, filed with
the Commission on October 22, 2009, dated December 7, 2009, filed with the
Commission on December 7, 2009, dated January 25, 2010, filed with the
Commission on January 26, 2010, and dated January 28, 2010, filed with
the Commission on January 28, 2010; and
(e) The
description of the Registrant’s Class A Common Stock contained in the
Registrant’s Registration Statement No. 000-26841 on Form 8-A filed with the
Commission on July 27, 1999 pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), pursuant to Rule 12g-3(a) of the
Exchange Act and the description of the Registrant’s Class A Common Stock set
forth under the caption “Description of Common Stock” contained in the
Prospectus dated August 2, 1999, as filed with the Commission on August 4, 1999
and any amendment or report filed for the purpose of updating such
description.
All
documents subsequently filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents. 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 herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM
5. INTERESTS OF NAMED EXPERTS
AND COUNSEL.
Not
applicable.
ITEM
7. EXEMPTION FROM REGISTRATION
CLAIMED.
Not applicable.
ITEM
8. EXHIBITS.
The
following exhibits are filed as part of this Registration
Statement:
Exhibit
No.
|
Description.
|
4.1
|
1-800-FLOWERS.COM,
Inc. 2003 Long Term Incentive and Share Award Plan, as amended and
restated as of October 22, 2009 (incorporated by reference to Annex A to
the Company’s Proxy Statement on Schedule 14A (File No. 000-26841) filed
on October 23, 2009)
|
4.2
|
Specimen
Class A common stock certificate. (incorporated by reference to
Exhibit 4.1 to the Registration Statement on Form S-1/A filed on July 9,
1999 (File No. 333-78985))
|
4.3
|
Third
Amended and Restated Certificate of Incorporation. (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-1/A filed
on July 9, 1999 (File No. 333-78985))
|
4.4
|
Amendment No.
1 to Third Amended and Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.2 to the Registration Statement on Form S-1/A
filed on July 22, 1999 (File No. 333-78985))
|
4.5
|
Amended
and Restated By-laws (incorporated by reference to Exhibit 3.3
to the Registration Statement on Form S-1 filed on May 21, 1999
(File No 333-78985))
|
4.6
|
1999
Stock Incentive Plan (incorporated by reference to Exhibit 10.18 to the
Registration Statement on Form S-1/A filed on July 27, 1999 (File No.
333-78985))
|
5.1
|
Opinion
of Cahill Gordon & Reindel llp*
|
23.1
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm*
|
23.2
|
Consent
of Cahill Gordon & Reindel llp (included in
the opinion filed as Exhibit 5.1)*
|
24
|
Powers
of Attorney (included on signature page)*
|
*
Filed herewith.
|
|
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 of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the State of New York, on this 5th day
of February, 2010.
1-800-FLOWERS.COM,
INC.
|
By: /s/ James
F. McCann
Name:
James F. McCann
Title:
Chief Executive Officer
Chairman
of the Board of Directors
|
POWER OF
ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints James F. McCann and William E. Shea, and each of them
acting alone, his true and lawful attorney-in-fact, with full power of
substitution, for him in any and all amendments and post-effective amendments to
this registration statement, and any registration statement or statements on
Form S-8 to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to shares of Class A Common
Stock of the Company to be issued under the 1-800-Flowers.com, Inc. 2003 Long
Term Incentive and Share Award Plan, as amended and restated as of October 22,
2009, and to file the same (including any amendments to such registration
statement and any additional registration statements filed in accordance with
General Instruction E to Form S-8 to register additional securities), and all
post-effective amendments thereto, together with exhibits to any such
registration statements or amendments and other documents in connection
therewith, and hereby ratifies and confirms all that said attorney-in-fact or
said attorney-in-fact’s substitute or substitutes may do or cause to be done by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed as of February 5, 2010 by the following persons
in the capacities indicated.
Dated: February 5,
2010
|
By: /s/ James F.
McCann
James
F. McCann
Chief
Executive Officer Chairman of the Board of Directors (Principal Executive
Officer)
|
Dated: February 5,
2010
|
By: /s/ William E.
Shea
William
E. Shea
Senior
Vice President Finance and Administration (Principal Financial and
Accounting Officer)
|
Dated: February 5,
2010
|
By: /s/ Christopher G.
McCann
Christopher
G. McCann
Director,
President
|
Dated: February 5,
2010
|
By: /s/ Lawrence
Calcano
Lawrence
Calcano
Director
|
Dated: February 5,
2010
|
By: /s/ James A.
Cannavino
James
A. Cannavino
Director
|
Dated: February 5,
2010
|
By: /s/ John J. Conefry,
Jr.
John
J. Conefry, Jr.
Director
|
Dated: February 5,
2010
|
By: /s/ Leonard J.
Elmore
Leonard
J. Elmore
Director
|
Dated: February 5,
2010
|
By: /s/ Jan L.
Murley
Jan
L. Murley
Director
|
Dated: February 5,
2010
|
By: /s/ Jeffrey C.
Walker
Jeffrey
C. Walker
Director
|
Dated: February 5,
2010
|
By: /s/ Larry
Zarin
Larry
Zarin
Director
|
INDEX TO
EXHIBITS
Exhibit
No.
|
Description
|
4.1
|
1-800-FLOWERS.COM,
Inc. 2003 Long Term Incentive and Share Award Plan, as amended and
restated as of October 22, 2009 (incorporated by reference to Annex A to
the Company’s Proxy Statement on Schedule 14A (File No. 000-26841) filed
on October 23, 2009)
|
4.2
|
Specimen
Class A common stock certificate. (incorporated by reference to
Exhibit 4.1 to the Registration Statement on Form S-1/A filed on July 9,
1999 (File No. 333-78985))
|
4.3
|
Third
Amended and Restated Certificate of Incorporation. (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-1/A filed
on July 9, 1999 (File No. 333-78985))
|
4.4
|
Amendment No.
1 to Third Amended and Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.2 to the Registration Statement on Form S-1/A
filed on July 22, 1999 (File No. 333-78985))
|
4.5
|
Amended
and Restated By-laws (incorporated by reference to Exhibit 3.3
to the Registration Statement on Form S-1 filed on May 21, 1999
(File No 333-78985))
|
4.6
|
1999
Stock Incentive Plan (incorporated by reference to Exhibit 10.18 to the
Registration Statement on Form S-1/A filed on July 27, 1999 (File No.
333-78985))
|
5.1
|
Opinion
of Cahill Gordon & Reindel llp
*
|
23.1
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm*
|
23.2
|
Consent
of Cahill Gordon & Reindel llp (included in
the opinion filed as Exhibit 5.1)*
|
24
|
Powers
of Attorney (included on signature page)*
|