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AMENDMENT TO
EMPLOYMENT AGREEMENT
AMENDMENT TO EMPLOYMENT
AGREEMENT ("Amendment") dated as of December 3,
2008 between 1-800-Flowers.com, Inc. (the "Company")
and Christopher G. McCann
(the "Executive").
WHEREAS, the Company and
the Executive are parties to an
Employment
Agreement dated as of July 1, 1999 (the "Agreement");
WHEREAS, the Company and the
Executive wish to amend the Agreement as set
forth herein in order to comply with Section 409A of the
Internal Revenue Code
of 1986, as amended;
NOW, THEREFORE, in consideration of
the mutual covenants herein contained,
the Company and the Executive hereby agree as follows:
1. Section 5(a) is amended by adding the following sentence to the
end thereof:
"Any
bonus payable under this Section shall be paid to the
Executive
after the
end of the Company's last fiscal year for which it is earned
but no later
than the fifteenth day of the third month of the
fiscal
year
following the Company's last fiscal year for which the bonus
is
earned."
2. Section 6(c) and Section 11(a)(iii),
both of which relate to split dollar
life insurance, are deleted. 3. New Section 24 is added to
read in its entirety
as follows:
(a) It
is intended that this Agreement will comply with Section
409A
of the Internal Revenue
Code of 1986, as amended (the "Code") and any
regulations and guidelines promulgated
thereunder (collectively, "Section
409A"), to the extent the Agreement
is subject thereto, and the Agreement
shall be interpreted on
a basis consistent with such
intent. If an
amendment of the
Agreement is necessary in order for it to comply
with
Section 409A, the parties hereto
will negotiate in good faith to amend the
Agreement in a manner that preserves the
original intent of the parties to
the extent reasonably
possible. No action or failure to act pursuant to
this Section 24 shall
subject the Company to any claim,
liability, or
expense, and the Company shall
not have any obligation to indemnify or
otherwise protect the
Executive from the obligation to pay any
taxes,
interest or penalties pursuant to Section
409A of the Code.
(b)
Notwithstanding any provision to the contrary in this
Agreement,
if the Executive is
deemed on the date of his or her "separation
from
service" (within the meaning of
Treas. Reg. Section 1.409A-1(h)) with the
Company to be a "specified
employee" (within the meaning of Treas. Reg.
Section
1.409A-1(i)
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