AMENDMENT NUMBER ONE TO THE INVESTORS’ RIGHTS AGREEMENT
Exhibit 10.5
AMENDMENT NUMBER ONE
TO THE INVESTORS’ RIGHTS AGREEMENT
This Amendment Number One (“Amendment”) to the Investors’ Rights 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”), Internet Floral Concepts, L.P. (the “Existing Investor”) and the individuals and entities listed on Schedule A attached hereto (the “New Investors”). 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 Investors pursuant to that certain Note and Warrant Purchase Agreement entered into among the Company, the New Investors and certain other investors as of October 16, 1999.
B. The New Investors 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 Investor desire to add the New Investors as parties to the Agreement.
C. Section 3.7 of the Agreement provides that any term of the Agreement may be amended with the written consent of the Company and the holders of a majority of the Registrable Securities then outstanding.
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 Investors shall be deemed to have entered into and become a party to the Agreement and shall each be deemed an “Investor” 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.
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: |
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Chief Executive Officer | ||||
| EXISTING INVESTOR: | INTERNET FLORAL CONCEPTS, L.P. | |||
| By: |
JPS International, LLC | |||
| Its: |
General Partner | |||
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| Managing Member | ||||
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| NEW INVESTORS: | BROADVIEW SLP | |||
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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE INVESTORS’ RIGHTS AGREEMENT]
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| Trustee | ||||
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| I-HATCH AFFILIATES, L.P. | ||||
| By: |
i-hatch Ventures, LLC | |||
| By: |
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| Chief Financial Officer | ||||
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| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. AND ▇▇▇▇▇▇▇▇ ▇. DATED AUGUST 30, 1982, AND AMENDED JULY 31, 1995 | ||||
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| Trustee | ||||
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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
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| KRG PF, LLC | ||||
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Arcata Land Company, LLC | |||
| Its: |
Manager | |||
| By: |
Lane De Vries | |||
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Manager | |||
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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE INVESTORS’ RIGHTS AGREEMENT]
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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE INVESTORS’ RIGHTS AGREEMENT]
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| TELESOFT PARTNERS, L.P. | ||||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Executive Manager of the General Partner | ||||
| Address: | ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | |||
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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE INVESTORS’ RIGHTS AGREEMENT]
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| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| TELESOFT PARTNERS, L.P. | ||||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Executive Manager of the General Partner | ||||
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[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE INVESTORS’ RIGHTS AGREEMENT]
Schedule A
NEW INVESTORS
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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Telesoft Partners, L.P.