-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FrgSKKU0mvfPNQYcOoB5ntjtBbbhTAH3WyqFGn7X3mgx2+018KvxcWYTgJjXEJoB mMOx0y9a7DycTlyoiG86XQ== 0001084869-01-000005.txt : 20010131 0001084869-01-000005.hdr.sgml : 20010131 ACCESSION NUMBER: 0001084869-01-000005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010130 EFFECTIVENESS DATE: 20010130 FILER: COMPANY DATA: COMPANY CONFORMED NAME: 1 800 FLOWERS COM INC CENTRAL INDEX KEY: 0001084869 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RETAIL STORES, NEC [5990] IRS NUMBER: 113117311 STATE OF INCORPORATION: DE FISCAL YEAR END: 0627 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-54590 FILM NUMBER: 1518804 BUSINESS ADDRESS: STREET 1: 1600 STEWART AVE CITY: WESTBURY STATE: NY ZIP: 11590 BUSINESS PHONE: 5162376000 MAIL ADDRESS: STREET 1: 1600 STEWART AVE CITY: WESTBURY STATE: NY ZIP: 11590 S-8 1 0001.txt 2001 EMPLOYEE STOCK PURCHASE PLAN As filed with the Securities and Exchange Commission on January 30, 2001 Registration No. 333-78985 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 (IRS Employer Identification No.) 1600 Stewart Avenue Westbury, New York 11590 (Address of principal executive offices) (Zip Code) 1-800-FLOWERS.COM, INC. 2001 Employee Stock Purchase Plan and 1999 Stock Incentive Plan (Full title of the Plan) James F. McCann Chief Executive Officer Chairman of the Board of Directors 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) CALCULATION OF REGISTRATION FEE Proposed Maximum Proposed Offering Maximum Amount of Title of Securities to Amount to be Price per Aggregate Registration be Registered Registered Share Offering Price Fee - --------------------------------------------------------------------------------
2001 Employee Stock Purchase Plan Rights to purchase Common Stock $1,300,000 N/A N/A N/A Common Stock, $0.01 $1,300,000 $5.50 $7,150,000 $1,787.50 par value 1999 Stock Incentive Plan Rights to purchase Common Stock $3,777,787 N/A N/A N/A Common Stock, $0.01 $3,777,787 $5.50 $20,777,829 $5,194.46 par value (1)This Registration Statement shall also cover any additional shares of common stock which become issuable under the 2001 Employee Stock Purchase Plan and 1999 Stock Incentive Plan, by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of common stock of 1-800-FLOWERS.COM, Inc. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low price per share of common stock of 1-800-FLOWERS.COM, INC. as reported on the Nasdaq National Market on January 26, 2001.
PART II Information Required in the Registration Statement Item 3. Incorporation of Documents by Reference 1-800-FLOWERS.COM, INC. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): (a) The Registrant's Annual Report filed October 2, 2000 on Form 10-K for the fiscal year ended July 2, 2000; (b) The Registrant's Quarterly Report filed November 15, 2000 on Form 10-Q for the fiscal quarter ended October 1, 2000; and (c) The Registrant's Registration Statement No. 000-26841 on Form 8-A filed with the SEC on July 27, 1999, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of 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 subsequently filed document which also 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 4. Description of Securities Not Applicable. Item 5. Interests of Named Experts and Counsel Not Applicable. 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 this 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, a 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. Item 8. Exhibits Exhibit 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-26841 on Form 8-A, which is incorporated herein by reference pursuant to Item 3(c) of this Registration Statement. Exhibit 5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP Exhibit 10 1-800-FLOWERS.COM, Inc. 2001 Employee Stock Purchase Plan Exhibit 23.1 Consent of Independent Auditors. Exhibit 23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5. Exhibit 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 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 1933 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 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 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 2001 Employee Stock Purchase Plan and 1999 Stock Incentive Plan. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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 1933 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 1933 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 1933 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 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 Westbury, State of New York on this 30th day of January, 2001. 1-800-FLOWERS.COM, INC. By: /s/ James F. McCann James F. McCann Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That the undersigned officers and directors of 1-800-FLOWERS.COM, Inc, a Delaware corporation, do hereby constitute and appoint James F. McCann and William E. Shea, and either of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and either of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ James F. McCann Chairman and Chief Executive Officer January 30, 2001 James F. McCann (Principal Executive Officer) /s/ William E. Shea Senior Vice President of Finance January 30, 2001 William E. Shea and Administration (Principal Financial and Accounting Officer) /s/ Jeffrey C. Walker Director January 30, 2001 Jeffrey C. Walker /s/ Kevin O'Connor Director January 30, 2001 Kevin O'Connor /s/ Lawrence V. Calcano Director January 30, 2001 Lawrence V. Calcano /s/ Christopher G. McCann Director and President January 30, 2001 Christopher G. McCann /s/ T. Guy Minetti Senior Vice President - T. Guy Minetti Corporate Development January 30, 2001 and Director /s/ David Beirne Director January 30, 2001 David Beirne /s/ Charles R. Lax Director January 30, 2001 Charles R. Lax SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. EXHIBITS TO FORM S-8 UNDER SECURITIES ACT OF 1933 1-800-FLOWERS.COM, INC. EXHIBIT INDEX Exhibit Number 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-26841 on Form 8-A, which is incorporated herein by reference pursuant to Item 3(b) of this Registration Statement. Exhibit 5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP Exhibit 10 1-800-FLOWERS.COM, Inc. 2001 Employee Stock Purchase Plan Exhibit 23.1 Consent of Independent Auditors. Exhibit 23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5. Exhibit 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. EX-5 2 0002.txt OPINION OF COUNSEL Exhibit 5 January 30, 2001 1-800-FLOWERS.COM, Inc. 1600 Stewart Avenue Westbury, New York 11590 Re: 1-800-FLOWERS.COM, Inc. ("Company") Registration Statement for Offering of 5,077,787 Shares of Common Stock Ladies and Gentlemen: We refer to your registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 1,300,000 shares of Common Stock under the 2001 Employee Stock Purchase Plan and 3,777,787 shares of Common Stock under the 1999 Stock Incentive Plan. We advise you that, in our opinion, when such shares have been issued and sold pursuant to the applicable provisions of the plan, and in accordance with the Registration Statement, such shares will be validly issued, fully paid and nonassessable shares of the Company's Common Stock. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP EX-10 3 0003.txt 2001 EMPLOYEE STOCK PURCHASE PLAN Exhibit 10 1-800-FLOWERS.COM, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN (AS ADOPTED EFFECTIVE FEBRUARY 1, 2001) TABLE OF CONTENTS Page SECTION 1. PURPOSE OF THE PLAN 1 SECTION 2. ADMINISTRATION OF THE PLAN 1 (a) Committee Composition 1 (b) Committee Responsibilities 1 SECTION 3. ENROLLMENT AND PARTICIPATION 1 (a) Offering Periods 1 (b) Enrollment 1 (c) Duration of Participation 1 SECTION 4. EMPLOYEE CONTRIBUTIONS 2 (a) Frequency of Payroll Deductions 2 (b) Amount of Payroll Deductions 2 (c) Changing Withholding Rate 2 (d) Discontinuing Payroll Deductions 2 (e) Limit on Number of Elections 2 SECTION 5. WITHDRAWAL FROM THE PLAN 2 (a) Withdrawal 2 (b) Re-Enrollment After Withdrawal 3 SECTION 6. CHANGE IN EMPLOYMENT STATUS 3 (a) Termination of Employment 3 (b) Leave of Absence 3 (c) Death 3 SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES 3 (a) Plan Accounts 3 (b) Purchase Price 3 (c) Number of Shares Purchased 4 (d) Available Shares Insufficient 4 (e) Issuance of Stock 4 (f) Tax Withholding 4 (g) Unused Cash Balances 4 (h) Stockholder Approval 4 SECTION 8. LIMITATIONS ON STOCK OWNERSHIP 5 (a) Five Percent Limit 5 (b) Dollar Limit. 5 SECTION 9. RIGHTS NOT TRANSFERABLE 6 SECTION 10. NO RIGHTS AS AN EMPLOYEE 6 SECTION 11. NO RIGHTS AS A STOCKHOLDER 6 SECTION 12. SECURITIES LAW REQUIREMENTS. 6 SECTION 13. STOCK OFFERED UNDER THE PLAN 6 (a) Authorized Shares 6 (b) Anti-Dilution Adjustments 7 (c) Reorganizations 7 SECTION 14. AMENDMENT OR DISCONTINUANCE 7 SECTION 15. DEFINITIONS 7 (a) "Board" 7 (b) "Code" 7 (c) "Committee" 7 (d) "Company" 7 (e) "Compensation" 7 (f) "Corporate Reorganization" 8 (g) "Eligible Employee" 8 (h) "Exchange Act" 8 (i) "Fair Market Value" 8 (j) "Offering Period" 9 (k) "Participant" 9 (l) "Participating Company" 9 (m) "Plan" 9 (n) "Plan Account" 9 (o) "Purchase Price" 9 (p) "Stock" 9 (q) "Subsidiary" 9 1-800-FLOWERS.COM, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN SECTION 1. PURPOSE OF THE PLAN. The Plan was adopted by the Board on October 30, 2000, and is effective on February 1, 2001. The purpose of the Plan is to provide Eligible Employees with an opportunity to increase their proprietary interest in the success of the Company by purchasing Stock from the Company on favorable terms and to pay for such purchases through payroll deductions. The Plan is intended to qualify under section 423 of the Code. SECTION 2. ADMINISTRATION OF THE PLAN. (a) Committee Composition. The Plan shall be administered by the Committee. The Committee shall consist exclusively of one or more directors of the Company, who shall be appointed by the Board. (b) Committee Responsibilities. The Committee shall interpret the Plan and make all other policy decisions relating to the operation of the Plan. The Committee may adopt such rules, guidelines and forms as it deems appropriate to implement the Plan. The Committee's determinations under the Plan shall be final and binding on all persons. SECTION 3. ENROLLMENTAND PARTICIPATION. (a) Offering Periods. While the Plan is in effect, two Offering Periods shall commence in each calendar year. The Offering Periods shall consist of the six-month periods commencing on each May 1 and November 1, except that the first Offering Period shall commence on February 1, 2001 and end on April 30, 2001. (b) Enrollment. Any individual who, on the day preceding the first day of an Offering Period, qualifies as an Eligible Employee may elect to become a Participant in the Plan for such Offering Period by executing the enrollment form prescribed for this purpose by the Committee. The enrollment form shall be filed with the Company at the prescribed location not later than 10 days prior to the commencement of such Offering Period. (c) Duration of Participation. Once enrolled in the Plan, a Participant shall continue to participate in the Plan until he or she ceases to be an Eligible Employee, withdraws from the Plan under Section 5(a) or reaches the end of the Offering Period in which his or her employee contributions were discontinued under Section 4(d) or 8(b). A Participant who discontinued employee contributions under Section 4(d) or withdrew from the Plan under Section 5(a) may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Subsection (b) above. A Participant whose employee contributions were discontinued automatically under Section 8(b) shall automatically resume participation at the beginning of the earliest Offering Period ending in the next calendar year, if he or she then is an Eligible Employee. SECTION 4. EMPLOYEE CONTRIBUTIONS. (a) Frequency of Payroll Deductions. A Participant may purchase shares of Stock under the Plan solely by means of payroll deductions. Payroll deductions, as designated by the Participant pursuant to Subsection (b) below, shall occur on each payday during participation in the Plan. (b) Amount of Payroll Deductions. An Eligible Employee shall designate on the enrollment form the portion of his or her Compensation that he or she elects to have withheld for the purchase of Stock. Such portion shall be a whole percentage of the Eligible Employee's Compensation, but not less than 1% nor more than 15%. (c) Changing Withholding Rate. If a Participant wishes to change the rate of payroll withholding, he or she may do so by filing a new enrollment form with the Company at the prescribed location at any time. The new withholding rate shall be effective as soon as reasonably practicable after such form has been received by the Company. The new withholding rate shall be a whole percentage of the Eligible Employee's Compensation, but not less than 1% nor more than 15%. (d) Discontinuing Payroll Deductions. If a Participant wishes to discontinue employee contributions entirely, he or she may do so by filing a new enrollment form with the Company at the prescribed location at any time. Payroll withholding shall cease as soon as reasonably practicable after such form has been received by the Company. (In addition, employee contributions may be discontinued automatically pursuant to Section 8(b).) A Participant who has discontinued employee contributions may resume such contributions by filing a new enrollment form with the Company at the prescribed location. Payroll withholding shall resume as soon as reasonably practicable after such form has been received by the Company. (e) Limit on Number of Elections. No Participant shall make more than 2 elections under Subsection (c) or (d) above during any Offering Period. SECTION 5. WITHDRAWAL FROM THE PLAN. (a) Withdrawal. A Participant may elect to withdraw from the Plan by filing the prescribed form with the Company at the prescribed location at any time before the last day of an Offering Period. As soon as reasonably practicable thereafter, payroll deductions shall cease and the entire amount credited to the Participant's Plan Account shall be refunded to him or her in cash, without interest. No partial withdrawals shall be permitted. (b) Re-Enrollment After Withdrawal. A former Participant who has withdrawn from the Plan shall not be a Participant until he or she re-enrolls in the Plan under Section 3(b). Re-enrollment may be effective only at the commencement of an Offering Period. SECTION 6. CHANGE IN EMPLOYMENT STATUS. (a) Termination of Employment. Termination of employment as an Eligible Employee for any reason, including death, shall be treated as an automatic withdrawal from the Plan under Section 5(a). (A transfer from one Participating Company to another shall not be treated as a termination of employment.) (b) Leave of Absence. For purposes of the Plan, employment shall not be deemed to terminate when the Participant goes on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. Employment, however, shall be deemed to terminate 90 days after the Participant goes on a leave, unless a contract or statute guarantees his or her right to return to work. Employment shall be deemed to terminate in any event when the approved leave ends, unless the Participant immediately returns to work. (c) Death. In the event of the Participant's death, the amount credited to his or her Plan Account shall be paid to a beneficiary designated by him or her for this purpose on the prescribed form or, if none, to the Participant's estate. Such form shall be valid only if it was filed with the Company at the prescribed location before the Participant's death. SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES. (a)Plan Accounts. The Company shall maintain a Plan Account on its books in the name of each Participant. Whenever an amount is deducted from the Participant's Compensation under the Plan, such amount shall be credited to the Participant's Plan Account. Amounts credited to Plan Accounts shall not be trust funds and may be commingled with the Company's general assets and applied to general corporate purposes. No interest shall be credited to Plan Accounts. (b) Purchase Price. The Purchase Price for each share of Stock purchased at the close of an Offering Period shall be the lower of: (i) 85% of the Fair Market Value of such share on the last trading day in such Offering Period; or (ii) 85% of the Fair Market Value of such share on the last trading day before the commencement of such Offering Period. (c) Number of Shares Purchased. As of the last day of each Offering Period, each Participant shall be deemed to have elected to purchase the number of shares of Stock calculated in accordance with this Subsection (c), unless the Participant has previously elected to withdraw from the Plan in accordance with Section 5(a). The amount then in the Participant's Plan Account shall be divided by the Purchase Price, and the number of shares that results shall be purchased from the Company with the funds in the Participant's Plan Account. The foregoing notwithstanding, no Participant shall purchase more than 500 shares of Stock with respect to any Offering Period nor more than the amounts of Stock set forth in Sections 8(b) and 13(a). The Committee may determine with respect to all Participants that any fractional share, as calculated under this Subsection (c), shall be (i) rounded down to the next lower whole share or (ii) credited as a fractional share. (d) Available Shares Insufficient. In the event that the aggregate number of shares that all Participants elect to purchase during an Offering Period exceeds the maximum number of shares remaining available for issuance under Section 13(a), then the number of shares to which each Participant is entitled shall be determined by multiplying the number of shares available for issuance by a fraction, the numerator of which is the number of shares that such Participant has elected to purchase and the denominator of which is the number of shares that all Participants have elected to purchase. (e) Issuance of Stock. Certificates representing the shares of Stock purchased by a Participant under the Plan shall be issued to him or her as soon as reasonably practicable after the close of the applicable Offering Period, except that the Committee may determine that such shares shall be held for each Participant's benefit by a broker designated by the Committee (unless the Participant has elected that certificates be issued to him or her). Shares may be registered in the name of the Participant or jointly in the name of the Participant and his or her spouse as joint tenants with right of survivorship or as community property. (f) Tax Withholding. To the extent required by applicable federal, state, local or foreign law, a Participant shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise in connection with the Plan. The Company shall not be required to issue any shares of Stock under the Plan until such obligations are satisfied. (g) Unused Cash Balances. Any amount remaining in the Participant's Plan Account that represents the Purchase Price for a fractional share shall be carried over in the Participant's Plan Account to the next Offering Period. Any amount remaining in the Participant's Plan Account that represents the Purchase Price for whole shares that could not be purchased by reason of Subsection (c) above, Section 8(b) or Section 13(a) shall be refunded to the Participant in cash, without interest. (h) Stockholder Approval. Any other provision of the Plan notwithstanding, no shares of Stock shall be purchased under the Plan unless and until the Company's stockholders have approved the adoption of the Plan. SECTION 8. LIMITATIONS ON STOCK OWNERSHIP. (a) Five Percent Limit. Any other provision of the Plan notwithstanding, no Participant shall be granted a right to purchase Stock under the Plan if such Participant, immediately after his or her election to purchase such Stock, would own stock possessing more than 5% of the total combined voting power or value of all classes of stock of the Company or any parent or Subsidiary of the Company. For purposes of this Subsection (a), the following rules shall apply: (i) Ownership of stock shall be determined after applying the attribution rules of section 424(d) of the Code; (ii) Each Participant shall be deemed to own any stock that he or she has a right or option to purchase under this or any other plan; and (iii) Each Participant shall be deemed to have the right to purchase 500 shares of Stock under this Plan with respect to each Offering Period. (b) Dollar Limit. Any other provision of the Plan notwithstanding, no Participant shall purchase Stock with a Fair Market Value in excess of the following limit: (i) In the case of Stock purchased during an Offering Period that commenced in the current calendar year, the limit shall be equal to (A) $25,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased in the current calendar year (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company). (ii) In the case of Stock purchased during an Offering Period that commenced in the immediately preceding calendar year, the limit shall be equal to (A) $50,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company) in the current calendar year and in the immediately preceding calendar year. For purposes of this Subsection (b), the Fair Market Value of Stock shall be determined in each case as of the beginning of the Offering Period in which such Stock is purchased. Employee stock purchase plans not described in section 423 of the Code shall be disregarded. If a Participant is precluded by this Subsection (b) from purchasing additional Stock under the Plan, then his or her employee contributions shall automatically be discontinued and shall resume at the beginning of the earliest Offering Period ending in the next calendar year (if he or she then is an Eligible Employee). SECTION 9. RIGHTS NOT TRANSFERABLE. The rights of any Participant under the Plan, or any Participant's interest in any Stock or moneys to which he or she may be entitled under the Plan, shall not be transferable by voluntary or involuntary assignment or by operation of law, or in any other manner other than by beneficiary designation or the laws of descent and distribution. If a Participant in any manner attempts to transfer, assign or otherwise encumber his or her rights or interest under the Plan, other than by beneficiary designation or the laws of descent and distribution, then such act shall be treated as an election by the Participant to withdraw from the Plan under Section 5(a). SECTION 10. NO RIGHTS AS AN EMPLOYEE. Nothing in the Plan or in any right granted under the Plan shall confer upon the Participant any right to continue in the employ of a Participating Company for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Participating Companies or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her employment at any time and for any reason, with or without cause. SECTION 11. NO RIGHTS AS A STOCKHOLDER. A Participant shall have no rights as a stockholder with respect to any shares of Stock that he or she may have a right to purchase under the Plan until such shares have been purchased on the last day of the applicable Offering Period. SECTION 12. SECURITIES LAW REQUIREMENTS. Shares of Stock shall not be issued under the Plan unless the issuance and delivery of such shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company's securities may then be traded. SECTION 13. STOCK OFFERED UNDER THE PLAN. (a) Authorized Shares. The aggregate number of shares of Stock available for purchase under the Plan shall be 1,300,000, subject to adjustment pursuant to this Section 13. On the first trading day of each calendar year, commencing with 2002, the aggregate number of shares of Stock available for purchase during the life of the Plan shall automatically increase by a number equal to the lesser of (a) 1% of the total number of shares of Stock then outstanding or (b) 750,000 shares (subject to adjustment pursuant to this Section 13). (b) Anti-Dilution Adjustments. The aggregate number of shares of Stock offered under the Plan, the 500-share limitation described in Section 7(c) and the price of shares that any Participant has elected to purchase shall be adjusted proportionately by the Committee for any increase or decrease in the number of outstanding shares of Stock resulting from a subdivision or consolidation of shares or the payment of a stock dividend, any other increase or decrease in such shares effected without receipt or payment of consideration by the Company, the distribution of the shares of a Subsidiary to the Company's stockholders or a similar event. (c) Reorganizations. Any other provision of the Plan notwithstanding, immediately prior to the effective time of a Corporate Reorganization, the Offering Period then in progress shall terminate and shares shall be purchased pursuant to Section 7, unless the Plan is continued or assumed by the surviving corporation or its parent corporation. The Plan shall in no event be construed to restrict in any way the Company's right to undertake a dissolution, liquidation, merger, consolidation or other reorganization. SECTION 14. AMENDMENT OR DISCONTINUANCE. The Board shall have the right to amend, suspend or terminate the Plan at any time and without notice. Except as provided in Section 13, any increase in the aggregate number of shares of Stock to be issued under the Plan shall be subject to approval by a vote of the stockholders of the Company. In addition, any other amendment of the Plan shall be subject to approval by a vote of the stockholders of the Company to the extent required by an applicable law or regulation. The Plan shall terminate automatically 20 years after its adoption by the Board, unless (a) the Plan is extended by the Board and (b) the extension is approved within 12 months by a vote of the stockholders of the Company. SECTION 15.DEFINITIONS. (a) "Board" means the Board of Directors of the Company, as constituted from time to time. (b) "Code" means the Internal Revenue Code of 1986, as amended. (c) "Committee" means a committee of the Board, as described in Section 2. (d) "Company" means 1-800-FLOWERS.COM, Inc., a Delaware corporation. (e) "Compensation" means (i) the total compensation paid in cash to a Participant by a Participating Company, including salaries, wages, bonuses, incentive compensation, commissions, overtime pay and shift premiums, plus (ii) any pre-tax contributions made by the Participant under section 401(k) or 125 of the Code. "Compensation" shall exclude all non-cash items, moving or relocation allowances, cost-of-living equalization payments, car allowances, tuition reimbursements, imputed income attributable to cars or life insurance, severance pay, fringe benefits, contributions or benefits received under employee benefit plans, income attributable to the exercise of stock options, and similar items. The Committee shall determine whether a particular item is included in Compensation. (f) "Corporate Reorganization" means: (i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization; or (ii) The sale, transfer or other disposition of all or substantially all of the Company's assets or the complete liquidation or dissolution of the Company. (g) "Eligible Employee" means any employee of a Participating Company who meets both of the following requirements: (i) His or her customary employment is for more than five months per calendar year and for more than 20 hours per week; and (ii) He or she has been an employee of a Participating Company for not less than 6 consecutive months. However, for the first Offering Period beginning on February 1, 2001, the requirement stated in this subsection (ii) shall be disregarded. The foregoing notwithstanding, an individual shall not be considered an Eligible Employee if his or her participation in the Plan is prohibited by the law of any country which has jurisdiction over him or her or if he or she is subject to a collective bargaining agreement that does not provide for participation in the Plan. (h) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (i) "Fair Market Value" means the market price of Stock, determined by the Committee as follows: (i) If the Stock was traded on The Nasdaq National Market or The Nasdaq SmallCap Market on the date in question, then the Fair Market Value shall be equal to the last-transaction price quoted for such date by such Market; (ii) If the Stock was traded on a stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported by the applicable composite transactions report for such date; or (iii) If none of the foregoing provisions is applicable, then the Committee shall determine the Fair Market Value in good faith on such basis as it deems appropriate. Whenever possible, the determination of Fair Market Value by the Committee shall be based on the prices reported in The Wall Street Journal or as reported directly to the Company by Nasdaq or a stock exchange. Such determination shall be conclusive and binding on all persons. (j) "Offering Period" means a six-month period with respect to which the right to purchase Stock may be granted under the Plan, as determined pursuant to Section 3(a). (k) "Participant" means an Eligible Employee who elects to participate in the Plan, as provided in Section 3(b). (l) "Participating Company" means (i) the Company and (ii) each present or future Subsidiary designated by the Committee as a Participating Company. (m) "Plan" means this 1-800-FLOWERS.COM, Inc. 2001 Employee Stock Purchase Plan, as it may be amended from time to time. (n) "Plan Account" means the account established for each Participant pursuant to Section 7(a). (o) "Purchase Price" means the price at which Participants may purchase Stock under the Plan, as determined pursuant to Section 7(b). (p) "Stock" means the Common Stock of the Company. (q) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. EX-23.1 4 0004.txt CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1-800-FLOWERS.COM, Inc. 2001 Employee Stock Purchase Plan and 1999 Stock Incentive Plan of our report dated August 16, 2000 (except for Note 12, Commitments and Contingencies-Online Marketing Agreements, as to which the date is September 1, 2000), with respect to the consolidated financial statements and schedule of 1-800-FLOWERS.COM, Inc. included in its Annual Report (Form 10-K) for the year ended July 2, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Melville, New York January 30, 2001 -----END PRIVACY-ENHANCED MESSAGE-----