Exhibit 10.12
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
FIRST AMENDMENT dated as of March 27, 1999 (this "AMENDMENT") to the
Stockholders' Agreement dated as of April 3, 1998 (the Stockholders' Agreement,
as amended hereby, the "STOCKHOLDERS' AGREEMENT"), by and among THE PLOW &
HEARTH, INC. , a Virginia corporation having an address at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "COMPANY"), 1-800-FLOWERS, INC., a Delaware
corporation, having an address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("FLOWERS") and the other Persons set forth on the signature page hereof;
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Stockholders' Agreement
in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the following and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not
defined herein which are defined in the Stockholders' Agreement, shall have the
same meaning herein as in the Stockholders' Agreement.
2. AMENDMENT OF DEFINITIONS. (a) Section 1.1(k) of the
Stockholders' Agreement hereby is amended by deleting it in its entirety and
replacing it with the following:
(k) "COMPANY VALUE" shall mean the product of (i)
seven (7) multiplied by (ii) the EBIT of the Company for the twelve-month period
ending on the last day of the calendar month preceding (A) in the case of a Put
Option, the Put Event or the Put Period Trigger Date, as the case may be; (B) in
the case of a Call Option, the Call Event, or the Call Period Trigger Date, as
the case may be; (C) in the case of a Call Option triggered by the circumstances
described in Section 1.1(e)(ii), the later of the Put Period Trigger Date or the
Delayed Call Event; (D) in the case of a Cash Out Option, the Effective Date or
the Consummation Date, as the case may be, or (E) in the case of Section 2.2(b),
the Investment Date, or if any such date is the last day of a month, on such
date; PROVIDED, HOWEVER that the parties hereto have agreed that in no event
shall the Company Value be less than $21,000,000.
3. RESTATEMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders'
Agreement, as amended hereby, remains in full force and effect until terminated
in accordance with Article 11 thereof. All other terms of the Stockholders'
Agreement are hereby restated.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
THE PLOW & HEARTH, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
_____________________________
1-800-FLOWERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
MANAGEMENT STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Joint Tenant with
Right of Survivorship
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Joint Tenant with
Right of Survivorship
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
LASAHANE INVESTMENTS
By: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., its Managing
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
_____________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Managing Partner
▇▇▇▇▇ ▇. ▇▇▇▇
THE ▇▇▇▇▇ VAN ▇. ▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: as Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., CUSTODIAN FBO/C.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: as Trustee
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
OPTIONHOLDERS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. Freshwater
______________________________
▇▇▇▇▇▇ ▇. Freshwater
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
SECOND AMENDMENT dated as of May 17, 1999 (this "AMENDMENT") to the
Stockholders' Agreement dated as of April 3, 1998, as amended on March 27, 1999
(the Stockholders' Agreement, as amended hereby, the "STOCKHOLDERS' AGREEMENT"),
by and among THE PLOW & HEARTH, INC. , a Virginia corporation having an address
at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "COMPANY"), ▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇,
INC., a Delaware corporation (formerly known as 1-800-Flowers, Inc.), having an
address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("FLOWERS") and the
other Persons set forth on the signature page hereof;
W I T N E S S E T H:
WHEREAS, in anticipation of a possible IPO of Flowers, the parties
hereto desire to amend the Stockholders' Agreement in accordance with the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the following and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not
defined herein which are defined in the Stockholders' Agreement, shall have the
same meaning herein as in the Stockholders' Agreement.
2. AMENDMENT OF DEFINITIONS. (a) Section 1.1(h) of the
Stockholders' Agreement hereby is amended by deleting it in its entirety and
replacing it with the following:
"(h) "CASH OUT PRICE" shall mean: (i) generally, with
respect to any Management Stockholder or Optionholder, (A) the product of the
Company Value multiplied by such Management Stockholder's or Optionholder's
Proportionate Interest, less (B) any loans, advances or similar monetary
obligations owed or otherwise outstanding from such Management Stockholder or
Optionholder or their respective Related Employee or Affiliates (whether or not,
otherwise due and payable) to the Company or its Affiliates, and any amounts
owed by such Management Stockholder, Optionholder or their respective Related
Employee to the Company or its Affiliates with respect to the exercise of
Options or other Purchase Rights; and (ii) for a Qualifying IPO, with respect to
any Management Stockholder or Optionholder, (A) the product of $28,000,000
multiplied by such Management Stockholder's or Optionholder's Proportionate
Interest, less (B) any loans, advances or similar monetary obligations owed or
otherwise outstanding from such Management Stockholder or Optionholder or their
respective Related Employee or Affiliates (whether or not, otherwise due and
payable) to the Company or its Affiliates, and any amounts owed by such
Management Stockholder, Optionholder or their respective Related Employee to the
Company or its Affiliates with respect to the exercise of Options or other
Purchase Rights."
(b) Section 1.1(aj) of the Stockholders' Agreement hereby is
amended by deleting it in its entirety and replacing it with the following:
"(aj) "PROPORTIONATE INTEREST" with respect to any
Person, shall mean: (i) generally, a fraction, the numerator of which is the
total of number of Shares and Option Shares being sold by such Person and the
denominator of which is the total number of Shares and Option Shares then
outstanding and (in the case of Optionholders) deemed outstanding on a Fully
Diluted Basis; and (ii) for a Qualifying IPO, in calculating the Cash Out Price
for the Stockholder Cash Out Option, a fraction, the numerator of which is the
total of number of Shares and Option Shares being sold by such Person and the
denominator of which is the total number of Shares, Option Shares and shares of
Common Stock which are issuable upon exercise of vested options pursuant to the
terms of the New Plan, as amended ("NEW OPTION SHARES"), then outstanding and
(in the case of Optionholders and holders of New Option Shares) deemed
outstanding on a Fully Diluted Basis." (c) Section 1.1 of the Stockholders'
Agreement shall be amended by adding the following paragraph (aq-1) immediately
following paragraph (aq):
"(aq-1) "QUALIFYING IPO" shall mean an IPO of
Flowers, for which ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. serves as the lead managing underwriter,
which is completed on or before December 31, 1999, and as a result of which
Flowers receives gross offering proceeds of not less than $80,000,000."
3. AMENDMENT OF SECTION 9. Section 9 of the Stockholders'
Agreement is deleted in its entirety and replaced by the following new Section
9:
9. MANAGEMENT STOCKHOLDERS CONVERSION AND CASH OUT OPTIONS
9.1 CONVERSION AND CASH OUT OPTIONS. (a) MANAGEMENT
STOCKHOLDER OPTIONS. (i) Upon the occurrence of the first to occur of an IPO of
Flowers (Flowers is sometimes referred to in this Section 9 as an "ISSUER"), or
the Sale of Flowers, each of the Management Stockholders and Optionholders shall
(A) in the case of a Sale of Flowers or an IPO that is not a Qualifying IPO,
have the option to cause (1) all (but not less than all) of its Shares and
Option Shares to be converted into that number of shares of capital stock of the
Issuer to be determined by applying the Conversion Ratio to the Shares and the
Option Shares of such Management Stockholders and Optionholders (the
"STOCKHOLDER CONVERSION OPTION") or (2) in the event of an IPO and subject to
approval of the managing underwriter of the IPO in its sole discretion, the
Issuer to purchase for cash, all of its Shares and Option Shares at the Cash Out
Price (the "STOCKHOLDER CASH OUT OPTION" and, collectively, together with the
Stockholder Conversion Option, the "STOCKHOLDER OPTIONS") and (B) in the case of
a Qualifying IPO, shall exercise the Stockholder Cash Out Option, in each case
in accordance with the provisions hereof.
(ii) Upon the occurrence of a "PRIVATE SALE"
prior to the termination of the Put Period, each Management Stockholder and
Optionholder shall have the right to cause the Company to purchase all (but not
less than all) of its Shares and Option Shares (the "PRIVATE SALE PUT OPTION")
at the Put Price. A "Private Sale" shall mean the Sale of the Issuer as a result
of which Management Stockholders and Optionholders would receive in
consideration for their Shares or Option Shares (or securities of the Issuer
into which such Shares or Option Shares would be converted) equity securities of
the acquiring or surviving entity which are not traded on a United States or
foreign securities exchange or traded or reported on the Nasdaq National Market
or the Nasdaq Stock Market or substantially equivalent foreign automated
quotation system.
(iii) If an Optionholder exercises a Stockholder
Option or Private Sale Put Option, it shall exercise all of its Options so that
the Options Shares thereunder may be converted or sold in accordance with the
provisions hereof, which exercise shall be conditioned upon, and shall be deemed
effective immediately prior to, the consummation of the conversion or sale, as
the case may be, of such Option Shares.
(b) ISSUER OPTION. If any Management Stockholder or
Optionholder has elected not to exercise its Stockholder Conversion Option,
Stockholder Cash Out Option or Private Sale Put Option in connection with a
Stockholder Option Event, then the Issuer shall have the option to cause all
(but not less than all) of the Shares and Option Shares of such Management
Stockholder or Optionholder to be converted into capital stock of the Issuer in
accordance with the provisions hereof (the "ISSUER CONVERSION OPTION"; and,
collectively together with the Stockholder Conversion Option, the "CONVERSION
OPTIONS"). If the Issuer exercises its Issuer Conversion Option, each
Optionholder shall exercise all of its Options so that the Option Shares
thereunder may be converted into Issuer Shares in accordance with the provisions
hereof, which exercise shall be conditioned upon, and shall be deemed effective
immediately prior to, the consummation of the conversion of the Option Shares.
9.2 EXERCISE OF MANAGEMENT STOCKHOLDER OPTIONS. (a) The Issuer
shall notify the Management Stockholders and Optionholders of a proposed IPO or
Sale not later than twenty (20) days prior to the anticipated Effective Date or
Consummation Date, as the case may be ("TRANSACTION NOTICE") and (i) in the case
of an IPO that is not a Qualifying IPO or a Sale, shall set forth in such notice
(A) to the extent known, the Conversion Ratio; (B) to the extent known, the
estimated range of the public offering price of the Issuer's securities to be
sold in the IPO, or the purchase price of, and the terms of payment of the
purchase price of, the Sale, as the case may be; and (C) whether the managing
underwriter of the IPO will permit Management Stockholders to exercise
Stockholder Cash Out Options and (ii) in the case of a Qualifying IPO, shall
provide to the Management Stockholders and Optionholders together with the
Transaction Notice a copy of the latest preliminary prospectus filed by the
Issuer with the SEC in connection with such IPO, or if the Issuer has not yet
filed a preliminary prospectus with the SEC, the Issuer shall provide such
preliminary prospectus within a reasonable period of time after it has been
filed with the SEC. If the Conversion Ratio, estimated range of the public
offering price of the IPO or the purchase price and/or terms of payment of the
purchase price of the Sale are not known at the time the Transaction Notice is
sent, the Issuer shall notify the Management
Stockholders and Optionholders of such Conversion Ratio, range or such price and
terms, as the case may be, within a reasonable period of time after such
information is known to the Issuer.
(b) In the case of an IPO that is not a Qualifying
IPO or a Sale of Flowers, within fifteen (15) business days after receipt of the
Transaction Notice, each Management Stockholder and Optionholder shall notify
the Issuer in writing whether it shall elect irrevocably to exercise its
Stockholder Conversion Option or (if available) its Stockholder Cash Out Option
or (if available) its Private Sale Put Option with respect to all of its Shares
and Option Shares (the "STOCKHOLDER EXERCISE NOTICE").
(c) In the case of a Qualifying IPO or if a
Management Stockholder or Optionholder has elected to exercise a Stockholder
Option or a Private Sale Put Option in connection with an IPO that is not a
Qualifying IPO or a Sale of Flowers, it shall deliver to the Issuer, together
with the Stockholder Exercise Notice, if applicable, the exercise price due and
payable for the purchase of each Option Share (to the extent such Option
exercise price is required to, or otherwise will, be paid in cash) together with
certificates representing all of its Shares and Option Shares together with such
other documents as the Issuer shall reasonably request so as to effect the
conversion of the Shares and Option Shares into shares of capital stock of the
Issuer (collectively, the "CONVERSION DOCUMENTS") or so as to effect the cash
out of the Management Stockholders and Optionholders Shares and Option Shares,
including but not limited to, evidence that the Shares and Option Shares shall
be purchased free and clear of all Liens (collectively, the "CASH-OUT
DOCUMENTS"), or so as to effect the sale of the Shares and Option Shares to the
Company pursuant to the Private Sale Put Option free and clear of all Liens (the
"PRIVATE SALE PUT DOCUMENTS"), as the case may be. Any Management Stockholder
who fails to exercise a Stockholder Option in accordance with the foregoing
provisions, shall be deemed to have elected to waive its right to exercise
Stockholder Options.
9.3 EXERCISE OF ISSUER CONVERSION OPTION. The Issuer shall
have the right at any time up to five (5) business days prior to the Effective
Date or Consummation Date, as the case may be, to exercise its Issuer Conversion
Option with respect to any Shares and Option Shares for which Management
Stockholders and Optionholders have not properly exercised Stockholder
Conversion Options, Stockholder Cash Out Options or Private Sale Put Options
hereunder. The Issuer shall exercise its Issuer Conversion Option by delivery of
written notice thereof to the Management Stockholders and Optionholders with
respect to whom the Issuer is exercising its option (the "ISSUER CONVERSION
NOTICE"). Promptly upon receipt of the Issuer Conversion Notice, Management
Stockholders and Optionholders shall deliver to the Issuer certificates
representing all of its Shares and Option Shares together with the Conversion
Documents.
9.4 CONVERSION OF SHARES ON IPO CLOSING DATE AND CONSUMMATION
DATE.
(a) On the IPO Closing Date, all Shares and Option
Shares with respect to which Conversion Options have been properly exercised,
automatically, without any further action on the part of the Management
Stockholders or Optionholders, the Issuer or any other Person, shall be
converted into the type and number of shares of capital stock of the Issuer
as shall be calculated by applying the Conversion Ratio to the Shares and Option
Shares held by such Management Stockholders and Optionholders.
(b) On the Consummation Date, all Shares and Option
Shares with respect to which Conversion Options have been properly exercised,
automatically, without any further action on the part of the Management
Stockholders, Optionholders, the Issuer or any other Person, shall be converted
into the type and number of shares of capital stock of the Issuer as shall be
calculated by applying the Conversion Ratio to the Shares and Option Shares, to
the total number of Shares and Option Shares in such class held by the
Management Stockholders and Optionholders. Such conversion shall be deemed to
occur on the Consummation Date immediately prior to the Consummation Time or at
such earlier time so as to enable such converting Management Stockholders and
Optionholders to participate in the Sale as a stockholder of the Issuer. In the
event that subsequent to such conversion it is determined that the Sale shall
not be consummated, then automatically and without any action on the part of the
Management Stockholders or the Optionholders, the Issuer or any other Person,
the conversion of the Shares and Option Shares into capital stock of the Issuer
shall be deemed null and void AB INITIO and of no force and effect, and each of
the Issuer, the Stockholders, the Optionholder and the Company shall take all
such actions as the Company shall deem necessary or desirable to nullify such
conversion.
(c) In the case of a conversion of Shares or Option
Shares into capital stock of Flowers, the Shares and Option Shares shall be
converted, into such class of capital stock of Flowers as is being registered in
the IPO or being sold in the Sale.
(d) (i) In connection with an IPO, the Conversion
Ratio shall be determined by the managing underwriter of the IPO, or if the
managing underwriter, in its discretion, shall permit, and the Management
Director shall so request, by such other investment bank, financial advisor or
appraiser as the Issuer shall select and the Management Director shall approve,
which approval shall not be unreasonably withheld, and such determination shall
be binding upon the Issuer, the Management Stockholders and the Optionholders.
(ii) In the event of an IPO, the
determination of the Conversion Ratio shall be made by valuing the Company, on
the one hand, and the Issuer, on the other hand, as separate entities. Although
the Issuer is the entity actually engaged in the IPO, in valuing the Company,
the managing underwriter shall also value the Company as if the Company itself
were being valued in connection with an initial public offering of its own
equity securities pursuant to a Registration Statement filed with the SEC
pursuant to the 1933 Act. In valuing the Company and the Issuer, the managing
underwriter shall take into account, among other factors: (A) the historical and
projected earnings and cash flow (as measured by EBIT or other appropriate
measurement standards) of each of the Company and Issuer respectively; (B)
multiples or other formulas typically used in valuing public companies that are
comparable (by virtue of the nature of business, size, years of operations
and/or other appropriate characteristics) to the Company, on the one hand, and
Issuer, on the other hand, (notwithstanding the fact that the Company is then a
privately held company); and (C) to the extent not already included in the
calculations made pursuant to clauses (A) and (B) above, the impact on the value
of each of the Company and
Issuer of the synergies and economies of scale which have resulted and are
projected to result from the affiliation of the Company and the Issuer. In
addition, in valuing the Company, the managing underwriter shall ignore any
discount that might otherwise apply as a result of the Issuer's control of the
Company or the lack of liquidity or transferability of the Shares created by
such control or this Agreement.
(e) (i) In connection with a Sale, the Conversion
Ratio shall be determined by the Issuer's investment banker or other financial
advisor retained in connection with such Sale, or if there is no such banker or
advisor, or if such banker or advisor, in its discretion, shall permit, and the
Management Director shall so request, by such other investment banker or
financial advisor or appraiser as the Issuer shall select and the Management
Director shall approve, which approval shall not be unreasonably withheld, and
such determination shall be binding upon the Issuer and the Management
Stockholders and the Optionholders.
(ii) In the event of a Sale, the
determination of the Conversion Ratio shall be made by valuing the Company, on
the one hand, and the Issuer, on the other hand, as separate entities. In
valuing the Company and the Issuer, the investment banker shall take into
account, among other factors: (A) the historical and projected earnings and cash
flow (as measured by EBIT or other appropriate measurement standards) of each of
the Company and Issuer respectively; (B) multiples or other formulas typically
used in transactions of this nature to value companies that are comparable (by
virtue of the nature of business, size, years of operations and/or other
appropriate characteristics) to the Company, on the one hand, and Issuer, on the
other hand; and (C) to the extent not already included in the calculations made
pursuant to clauses (A) and (B) above, the impact on the value of each of the
Company and Issuer of the synergies and economies of scale which have resulted
and are projected to result from the affiliation of the Company and the Issuer.
In addition, in valuing the Company, the investment banker shall ignore any
discount that might otherwise apply as a result of the Issuer's control of the
Company or the lack of liquidity or transferability of the Shares created by
such control or this Agreement.
(f) The Issuer shall bear the cost of determining the
Conversion Ratio.
(g) (i) The Issuer shall issue to the Management
Stockholders and Optionholders who are the subject of Conversion Options
in connection with an IPO, stock certificates representing the Issuer capital
stock into which their Shares and Option Shares have been converted within
fifteen (15) business days following the IPO Closing Date provided that the
Management Stockholders and Optionholders have provided to the Issuer all
required Conversion Documents.
(ii) The Issuer shall issue to Management
Stockholders and Optionholders who are the subject of Conversion Options
in connection with a Sale, stock certificates representing the Issuer capital
stock into which their Shares and Option Shares have been converted within such
time as is necessary to enable the Management Stockholders and Optionholders to
participate in the Sale as stockholders of the Issuer; PROVIDED, HOWEVER, that
the Issuer shall not be required to issue any such certificates if (A) such
certificates shall not be
required to enable the Management Stockholders and Optionholders to so
participate in the Sale or (B) a Management Stockholder or Optionholders has not
provided the Issuer with all required Conversion Documents.
9.5 CASH OUT OF SHARES. If a Management Stockholder or
Optionholder has properly elected to exercise its Stockholder Cash Out Option in
connection with an IPO or a Qualifying IPO, within fifteen (15) business days
after the IPO Closing Date, the Issuer shall pay to such Management Stockholder
or Optionholder the Cash Out Price by check against delivery to the Issuer of
all Cash Out Documents.
9.6 PURCHASE OF SHARES ON PRIVATE SALE CONSUMMATION DATE. If a
Management Stockholder or Optionholder has properly exercised its Private Sale
Put Option in connection with a Private Sale, within forty-five (45) days after
the Private Sale Consummation Date, the Issuer shall pay to the Management
Stockholder or Optionholder the Put Price in accordance with the provisions of
Section 6.1(c), (d), and (e) each of which shall be applicable fully to the
exercise and closing of the Private Sale Put Option.
4. RIGHT TO EXERCISE STOCKHOLDER CASH OUT OPTION. The parties
acknowledge and agree that in connection with a Qualifying IPO, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. has advised Flowers that Management Stockholders and Optionholders can be
paid the Cash Out Price pursuant to their Stockholder Cash Out Option.
5. APPLICABILITY OF THIS AMENDMENT. Notwithstanding anything
herein to the contrary, the parties acknowledge and agree that:
(a) this Amendment is being entered into solely in
contemplation of a Qualifying IPO currently being planned by Flowers; and
(b) If a Qualifying IPO is not completed on or before
December 31, 1999, this Amendment shall be terminated and of no further force
and effect, and each of the amendments to the Stockholders' Agreement effected
hereby automatically, without any further action on the part of the Management
Stockholders or Optionholders, the Issuer or any other Person, shall be deemed
null and void AB INITIO, and the Stockholders' Agreement as in effect
immediately prior to the execution of this Amendment shall be reinstated and be
deemed to be in full force and effect.
6. RESTATEMENT OF STOCKHOLDERS' AGREEMENT. The Stockholders'
Agreement, as amended hereby, remains in full force and effect until terminated
in accordance with Article 11 thereof. All other terms of the Stockholders'
Agreement are hereby restated.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
THE PLOW & HEARTH, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
______________________________
1-800-FLOWERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
MANAGEMENT STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Joint Tenant with
Right of Survivorship
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Joint Tenant with
Right of Survivorship
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
LASAHANE INVESTMENTS
By: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., its Managing
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
__________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Managing Partner
▇▇▇▇▇ ▇. ▇▇▇▇
THE ▇▇▇▇▇ VAN ▇. ▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: as Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., CUSTODIAN FBO/C.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: as Trustee
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
OPTIONHOLDERS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. Freshwater
______________________________
▇▇▇▇▇▇ ▇. Freshwater
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇