AMENDMENT NUMBER ONE TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT

Exhibit 10.7

 

AMENDMENT NUMBER ONE TO THE

AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT

 

This Amendment Number One (“Amendment”) to the Amended and Restated Stockholders’ Agreement dated as of December 29, 1999 (the “Agreement”) is made as of March 31, 2000 by and among ProFlowers, Inc., a Delaware corporation (the “Company”), certain of the individuals and entities listed on Schedule A (the “Existing Stockholders”) and the individuals and entities listed on Schedule B attached hereto (the “New Stockholders”). Capitalized terms used herein which are not defined herein shall have the definition ascribed to them in the Agreement.

 

RECITALS

 

A. The Company issued certain Convertible Promissory Notes (the “Notes”) to each of the New Stockholders pursuant to that certain Note and Warrant Purchase Agreement entered into among the Company, the New Stockholders and certain other investors as of October 16, 1999.

 

B. The New Stockholders elected to convert the principal and interest payable to them pursuant to each of their Notes into shares of the Company’s Series B Preferred Stock, and in connection therewith, the Company and the Existing Stockholders desire to add the New Stockholders as parties to the Agreement.

 

C. Section 11.8 of the Agreement provides that any term of the Agreement may be amended with the written consent of (a) the Company, (b) the holders of fifty-one percent (51 %) of the Capital Holdings of all Existing Stockholders who were stockholders of the Company prior to the Effective Time, (c) the holders of fifty-one percent (51 %) of the Capital Holdings of all Existing Stockholders who were stockholders of Flower Farm Direct, Inc., a Florida corporation, immediately prior to the Effective Time and (d) the holders of a majority of the Company’s Series B Preferred Stock.

 

In consideration of the foregoing and the promises and covenants contained herein and other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows:

 

1. ADDITIONAL PARTIES TO THE AGREEMENT.

 

The New Stockholders shall be deemed to have entered into and become a party to the Agreement and shall each be deemed a “Stockholder” for all purposes under the Agreement and Schedule A attached thereto.

 

2. EFFECT OF AMENDMENT.

 

Except as amended and set forth above, the Agreement shall continue in full force and effect.

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3. COUNTERPARTS.

 

This Amendment may be executed in any number of counterparts, each which will be deemed an original, and all of which together shall constitute one instrument.

 

4. SEVERABILITY.

 

If one or more provisions of this Amendment are held to be unenforceable under applicable law, such provision shall be excluded from this Amendment and the balance of the Amendment shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

 

5. ENTIRE AGREEMENT.

 

This Amendment, together with the Agreement, constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.

 

6. GOVERNING LAW.

 

This Amendment shall be governed by and construed under the laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California.

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

COMPANY:				PROFLOWERS, INC., a Delaware corporation
				By:		/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
						▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chief Executive Officer
EXISTING STOCKHOLDERS:				JPS INTERNATIONAL LLC
				By:		/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
						▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Managing Member
		Address:		▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
				INTERNET FLORAL CONCEPTS, L.P.
				By:		JPS International, LLC
				Its:		General Partner
				By:		/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
						▇▇▇▇▇ ▇ . ▇▇▇▇▇▇ Managing Member
		Address:		▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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		Address:		▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇

 

[SIGNATURE PAGE TO AMENDMENT NUMBER ONE

TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]

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NEW STOCKHOLDERS:				BROADVIEW SLP
				By:		/s/ ▇▇▇▇▇ ▇▇▇▇▇
						▇▇▇▇▇ ▇▇▇▇▇
				Its:
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		Address:		▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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		Address:		▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

 

[SIGNATURE PAGE TO AMENDMENT NUMBER ONE

TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]

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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE

TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]

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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE

TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]

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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE

TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]

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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE

TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]

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Schedule A

 

EXISTING STOCKHOLDERS

 

JPS International LLC

Internet Floral Concepts, L.P.

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Schedule B

 

NEW STOCKHOLDERS

 

Broadview SLP

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

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▇▇▇▇▇▇▇ Family Trust

I-Hatch Affiliates, L.P.

▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇

▇. ▇▇▇▇▇▇▇▇▇▇ Revocable Trust No.

One Dated August 30, 1982, and

Amended July 31, 1995

KRG PF, LLC

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▇▇▇▇▇▇ ▇▇▇▇

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Telesoft Partners, L.P.