FLWS 1 800 Flowers Com

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 incorporation or organization)	(I.R.S. Employer Identification No.)

 

 

 

Two Jericho Plaza, Suite 200, Jericho, New York 11753
(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 15, 2020, and amended as of October 3, 2023

(Full title of the plan)

 

James F. McCann 1-800-Flowers.com, Inc. Two Jericho Plaza Jericho, New York 11753

(Name and address of agent for service)

 

(516) 237-6000

(Telephone number, including area code, of agent for service)

 

 

copy to: Helene R. Banks  Cahill Gordon & Reindel LLP 32 Old Slip 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, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer	☐		Accelerated filer	☒
Non-accelerated filer	☐		Smaller reporting company	☐
			Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Exchange Act. ☐

 

 

 

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 1-800-Flowers.com, Inc. 2003 Long Term Incentive and Share Award Plan, as amended and restated as of October 15, 2020, as amended as of October 3, 2023 and as approved by the shareholders of the Registrant on December 14, 2023 (the “2003 Plan”), which increased the number of shares of Class A Common Stock authorized for issuance under the 2003 Plan by 4,000,000 shares. 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, a Registration Statement on Form S-8 (Registration No. 333-164727) previously filed by the Registrant on February 5, 2010, a Registration Statement on Form S-8 (Registration No. 333-192304) previously filed by the Registrant on November 13, 2013, and a Registration Statement on Form S-8 (Registration No. 333-259759) previously filed by the Registrant on September 24, 2021 (collectively, the “Original Registration Statement”), which registered 21,143,686 shares of Class A Common Stock in the aggregate and which, together with the shares of Class A common Stock registered under this Registration Statement, equals 25,143,686 shares of Class A Common Stock in the aggregate. 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 Securities and Exchange Commission (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.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

 

The following documents have been filed by the Registrant with 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 July 2, 2023, filed with the Commission on September 15, 2023;

 

(b)

The Registrant’s current report on Form 8-K dated November 2, 2023, filed with the Commission on November 2, 2023;

 

	(c)	The Registrant’s quarterly report on Form 10-Q for the fiscal quarter ended October 1, 2023, filed with the Commission on November 13, 2023; and
	(d)	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 that 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 8.

Exhibits.

 

The following exhibits are filed or incorporated by reference 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 15, 2020, and amended as of October 3, 2023 (incorporated by reference to Annex A to the Company’s Proxy Statement on Schedule 14A filed on October 30, 2023 (File No. 000-26841))
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 Quarterly Report on Form 10-Q filed on February 10, 2017 (File No. 000-26841))
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	Amendment No. 2 to Third Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on December 15, 2016 (File No. 000-26841))
4.6	Second Amended and Restated By-laws (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed on April 29, 2019 (File No. 000-26841))
5.1	Opinion of Cahill Gordon & Reindel LLP with respect to the legality of the shares being registered hereby*
23.1	Consent of BDO USA, P.C., 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)*
107	Calculation of Filing Fee Table*
* 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 City of Jericho, State of New York, on this 14^th day of December 2023.

 

	1-800-FLOWERS.COM, INC.
	By:	/s/ James F. McCann
		Name: James F. McCann
		Title: Executive Chairman and Chief Executive Officer (Principal Executive Officer)

 

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 15, 2020, and amended as of October 3, 2023, 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 December 14, 2023 by the following persons in the capacities and on the dates indicated.

 

 

Dated:	December 14, 2023	By:	/s/  James F. McCann
			James F. McCann
			Executive Chairman and Chief Executive Officer
			(Principal Executive Officer)
Dated:	December 14, 2023	By:	/s/  William E. Shea
			William E. Shea
			Senior Vice President, Treasurer and Chief Financial Officer (Principal Financial and Accounting Officer)
Dated:	December 14, 2023	By:	/s/  Christopher G. McCann
			Christopher G. McCann
			Director
Dated:	December 14, 2023	By:	/s/  Celia R. Brown
			Celia R. Brown
			Director
Dated:	December 14, 2023	By:	/s/  James A. Cannavino
			James A. Cannavino
			Director
Dated:	December 14, 2023	By:	/s/  Dina Colombo
			Dina Colombo
			Director

 

Dated:	December 14, 2023	By:	/s/  Eugene F. DeMark
			Eugene F. DeMark
			Director

 

 

Dated:	December 14, 2023	By:	/s/  Leonard. J. Elmore
			Leonard J. Elmore
			Director
Dated:	December 14, 2023	By:	/s/  Adam Hanft
			Adam Hanft
			Director
Dated:	December 14, 2023	By:	/s/  Stephanie Redish Hofmann
			Stephanie Redish Hofmann
			Director
Dated:	December 14, 2023	By:	/s/  Christina Shim
			Christina Shim
			Director
Dated:	December 14, 2023	By:	/s/  Larry Zarin
			Larry Zarin
			Director

 

 

 

Exhibit 5.1

 

Cahill Gordon & Reindel llp
32 Old Slip
New York, NY 10005

 

DANIEL R. ANDERSON HELENE R. BANKS ANIRUDH BANSAL LANDIS C. BEST CHRISTOPHER BEVAN BROCKTON B. BOSSON JONATHAN BROWNSON * DONNA M. BRYAN EMEKA C. CHINWUBA JOYDEEP CHOUDHURI * JAMES J. CLARK CHRISTOPHER W. CLEMENT AYANO K. CREED PRUE CRIDDLE ± SEAN M. DAVIS STUART G. DOWNING ADAM M. DWORKIN ANASTASIA EFIMOVA SAMSON A. ENZER GERALD J. FLATTMANN JR. HELENA S. FRANCESCHI

JOAN MURTAGH FRANKEL JONATHAN J. FRANKEL SESI GARIMELLA ARIEL GOLDMAN PATRICK GORDON JASON M. HALL STEPHEN HARPER WILLIAM M. HARTNETT CRAIG M. HOROWITZ TIMOTHY B. HOWELL DAVID G. JANUSZEWSKI JAKE KEAVENY BRIAN S. KELLEHER RICHARD KELLY CHÉRIE R. KISER ‡ JOEL KURTZBERG TED B. LACEY ALIZA R. LEVINE JOEL H. LEVITIN GEOFFREY E. LIEBMANN MARK LOFTUS

TELEPHONE: (212) 701-3000 WWW.CAHILL.COM ___________ 1990 K STREET, N.W. WASHINGTON, DC 20006-1181 (202) 862-8900 CAHILL GORDON & REINDEL (UK) LLP 20 FENCHURCH STREET LONDON EC3M 3BY +44 (0) 20 7920 9800 ___________ WRITER’S DIRECT NUMBER

JOHN MacGREGOR BRIAN T. MARKLEY MEGHAN N. McDERMOTT WILLIAM J. MILLER EDWARD N. MOSS JOEL MOSS NOAH B. NEWITZ WARREN NEWTON § DAVID R. OWEN JOHN PAPACHRISTOS LUIS R. PENALVER SHEILA C. RAMESH MICHAEL W. REDDY OLEG REZZY THOMAS ROCHER * THORN ROSENTHAL TAMMY L. ROY JONATHAN A. SCHAFFZIN ANDREW SCHWARTZ DARREN SILVER JOSIAH M. SLOTNICK

RICHARD A. STIEGLITZ JR. SUSANNA M. SUH ANTHONY K. TAMA JOHN A. TRIPODORO HERBERT S. WASHER FRANK WEIGAND MICHAEL B. WEISS DAVID WISHENGRAD C. ANTHONY WOLFE ELIZABETH M. YAHL     * ADMITTED AS A SOLICITOR IN ENGLAND AND WALES ONLY    ± ADMITTED AS A SOLICITOR IN WESTERN AUSTRALIA ONLY    ‡ ADMITTED IN DC ONLY    § ADMITTED AS AN ATTORNEY IN THE REPUBLIC OF SOUTH AFRICA ONLY

 

 

December 14, 2023

1-800-Flowers.com, Inc.
Two Jericho Plaza
Jericho, New York 11753

 

Re:         S-8 Registration Statement

 

Ladies and Gentlemen:

 

We have acted as counsel to 1-800-Flowers.com, Inc., a Delaware corporation (the “Company”), in connection with its Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) registering under the Securities Act of 1933, as amended, (the “Act”) 4,000,000 shares of the Company’s Class A common stock, par value $0.01 per share (the “Common Stock”), to be issued pursuant to the Company’s 2003 Long Term Incentive and Share Award Plan (as amended and restated as of October 15, 2020, and amended as of October 3, 2023) (the “Plan”).

 

We have examined copies of such corporate records and made such inquiries as we have deemed necessary for purposes of rendering the opinion set forth below.

 

Based upon the foregoing, in our opinion, the shares of the Common Stock to be issued by the Company when issued in the manner contemplated by the Plan will be legally issued, fully paid and non-assessable.

 

In rendering the opinion set forth above, we express no opinion as to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware and the Federal laws of the United States of America.

 

We hereby consent to the filing of a copy of this opinion with the Commission as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

	Very truly yours,
	/s/ Cahill Gordon & Reindel llp

 

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

1-800-FLOWERS.COM, Inc.

Jericho, New York

 

We hereby consent to the incorporation by reference in this Registration Statement of our reports dated September 15, 2023, relating to the consolidated financial statements and schedule and the effectiveness of internal control over financial reporting, of 1-800-FLOWERS.COM, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended July 2, 2023.

 

/s/ BDO USA, P.C.

 

BDO USA, P.C.

Melville, New York

December 14, 2023

 

 

 

 

Exhibit 107

 

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered (1)	Proposed Maximum Offering Price Per Unit (2)	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Class A Common Stock	Rule 457(h)	4,000,000	$9.41	$37,640,000	$147.60 per $1,000,000	$5,555.66
Total Offering Amounts					$37,640,000		$5,555.66
Total Fee Offsets					-		-
Net Fee Due							$5,555.66

 

 

(1)         Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (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 December 8, 2023.

 

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