As filed with the Securities and Exchange Commission on October 27, 2004
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 11-3117311
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1600 Stewart Avenue
Westbury, New York 11590
(Address of principal executive offices) (Zip Code)
1-800-FLOWERS.COM. Inc.
2003 Long Term Incentive and
Share Award Plan
James F. McCann
1-800-Flowers.com, Inc.
1600 Stewart Avenue
Westbury, New York 11590
(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
------------------------------
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered Offering Price Per Share Aggregate Offering Price (2) Registration Fee
(2) (2)
2003 Long Term Incentive 7,500,000 shares N/A N/A N/A
and Share Award Plan
Class A Common Stock, 7,500,000 shares $8.11 $ 60,825,000 $7,706.53
par value $.01 per share
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers any additional securities to be offered or
issued from stock splits, stock dividends or similar transactions.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, by averaging the high and low sales prices of the
Registrant's common stock reported on the Nasdaq National Market for
October 25, 2004.
1
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 of 1933, as amended (the "Securities Act"), to
register 7,500,000 shares of Class A Common Stock authorized for issuance under
the Registrant's 2003 Long Term Incentive and Share Award Plan (the "2003
Plan").
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 27, 2004, filed with the Commission on September 9, 2004;
(b) The Registrant's current report on Form 8-K dated August 5, 2004, filed
with the Commission on August 10, 2004; and
(c) 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"), in which there is described the
terms, rights and provisions applicable to the Registrant's Class A Common
Stock, 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.
2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that the liability of a director of the Registrant shall
be eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law (the "DGCL"). Under the DGCL, the directors have a fiduciary
duty to the Registrant which is not eliminated by this provision of the
Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are prohibited by
DGCL. This provision also does not affect the directors' responsibilities under
any other laws, such as the Federal securities laws or state or Federal
environmental laws. The Registrant has obtained liability insurance for its
officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that these
provisions shall not eliminate or limit the liability of a 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) arising under Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit. The DGCL provides further that the indemnification permitted
thereunder shall not be deemed exclusive of any other rights to which the
directors and officers may be entitled under the corporation's bylaws, any
agreement, vote of stockholders or otherwise. The Certificate eliminates the
personal liability of directors to the fullest extent permitted by Section
102(b)(7) of the DGCL and provides that the Registrant shall fully 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, administrative or investigative) by reason of the fact that such
person is or was a director or officer of the Registrant, or is or was serving
at the request of the Registrant as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding. At present, there is no pending
litigation or proceeding involving any director, officer, employee or agent as
to which indemnification will be required or permitted under the Certificate.
The Registrant is not aware of any threatened litigation or proceeding that may
result in a claim for such indemnification. In addition, the Registrant has
entered into indemnification agreements with each of its directors and officers,
pursuant to which the Registrant has agreed to indemnify such directors and
officers to the fullest extent permitted by the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3
ITEM 8. EXHIBITS.
--------
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
---------- -----------
4.1 Reference is made to Registrant's Registration Statement on
Form 8-A (File No. 000-26841), which is incorporated herein
by reference pursuant to Item 3(c) of this Registration
Statement.
5 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 Exhibit 5)
24.1 Powers of Attorney authorizing execution of Registration
Statement on Form S-8 on behalf of certain directors of
Registrant (included on signature pages to the Registration
Statement).
99.1 1-800-FLOWERS.COM, Inc. 2003 Long Term Incentive and Share
Award Plan
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;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that clauses (1)(i) and (1)(ii) shall not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference into this
Registration Statement;
4
(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; and
(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 Registrant's 2003 Long Term
Incentive and Share Award Plan.
(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 into this 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 or controlling persons of the Registrant
pursuant to the indemnification provisions summarized in Item 6 or otherwise,
the Registrant has been advised that, in the opinion of the SEC, 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.
5
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 30th day of September, 2004.
1-800-FLOWERS.COM, INC.
By: /s/ James F. McCann
------------------------------
Name: James F. McCann
Title: Chief Executive Officer
Chairman of the Board of Directors
6
Each person whose signature appears below in so signing also makes,
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, 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 September 30, 2004 by the
following persons in the capacities indicated.
Dated: September 30, 2004 By: /s/ James F. McCann
-------------------
James F. McCann
Chief Executive Officer
Chairman of the Board
Dated: September 30, 2004 By: /s/ William E. Shea
-------------------
Senior Vice President Finance
and Administration
Dated: September 30, 2004 By: /s/ Christopher G. McCann
-------------------------
Christopher G. McCann
Director
President
Dated: September 30, 2004 By: /s/ John J. Conefry, Jr.
------------------------
John J. Conefry, Jr.
Director
Dated: September 30, 2004 By: /s/ Leonard J. Elmore
---------------------
Leonard J. Elmore
Director
Dated: September 30, 2004 By: /s/ T. Guy Minetti
------------------
T. Guy Minetti
Director
Vice Chairman
Dated: September 30, 2004 By: /s/ Kevin J. O'Connor
---------------------
Kevin J. O'Connor
Director
Dated: September 30, 2004 By: /s/ Mary Lou Quinlan
--------------------
Mary Lou Quinlan
Director
Dated: September 30, 2004 By: /s/ Jeffrey C. Walker
---------------------
Jeffrey C. Walker
Director
7
INDEX TO EXHIBITS
Exhibit No. Description
4.1 Reference is made to Registrant's Registration Statement on
Form 8-A (File No. 000-26841), which is incorporated herein by
reference pursuant to Item 3(c) of this Registration Statement.
5 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 Exhibit 5)
24.1 Powers of Attorney authorizing execution of Registration
Statement on Form S-8 on behalf of certain directors of
Registrant (included on signature pages to the Registration
Statement).
99.1 1-800-FLOWERS.COM, Inc. 2003 Long Term Incentive and Share
Award Plan
8