AMENDEDAND 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.
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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2
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| COMPANY: | PROFLOWERS, INC., a Delaware corporation | |||||
| By: | /s/ William Strauss | |||||
| William Strauss Chief Executive Officer | ||||||
| EXISTING STOCKHOLDERS: | JPS INTERNATIONAL LLC | |||||
| By: | /s/ Jared P. Schutz | |||||
| Jared P. Schutz Managing Member | ||||||
| Address: | 1920 13th Street, Suite A Boulder, CO 80302 | |||||
| INTERNET FLORAL CONCEPTS, L.P. | ||||||
| By: | JPS International, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Jared P. Schutz | |||||
| Jared P . Schutz Managing Member | ||||||
| Address: | 1920 13th Street, Suite A Boulder, CO 80302 | |||||
| ABRAHAM J. WYNPERLE | ||||||
| Abraham J. Wynperle | ||||||
| Address: | 3066 N.W. 30th Way Boca Raton, FL 33431 | |||||
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]
| YUVAL MOED | ||||||
| Yuval Moed | ||||||
| Address: | 7050 N.W. 70th Street Parkland, FL 33067 | |||||
| MICHAEL E. FELSHER | ||||||
| Michael E. Felsher | ||||||
| Address: | 1 Grove Isle Drive, Apt. 1202 Miami, FL 33133 | |||||
| NEW STOCKHOLDERS: | BROADVIEW SLP | |||||
| By: | /s/ David Elias | |||||
| David Elias | ||||||
| Its: |
| |||||
| Address: | One Bridge Plaza, 5th Floor Fort Lee, NJ 07024-7502 | |||||
| JOEL THOMAS CITRON | ||||||
| /s/ Joel Thomas Citron | ||||||
| Joel Thomas Citron | ||||||
| Address: | 660 Madison Avenue, 22nd Floor New York, NY 10021 | |||||
| KEVIN FANG | ||||||
| /s/ Kevin Fang | ||||||
| Kevin Fang | ||||||
| Address: | 9 Davis Drive Armonk, NY 10504 | |||||
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]
| GILBERT FAMILY TRUST | ||||
| /s/ Lon R. Gilbert | ||||
| By: | Lon R. Gilbert Trustee | |||
| Address: | 13542 Jadestone Way San Diego, CA 92130 | |||
| I-HATCH AFFILIATES, L.P. | ||||
| By: | i-hatch Ventures, LLC | |||
| By: | /s/ Andrew Sutton | |||
| Andrew Sutton Chief Financial Officer | ||||
| Address: | 200 Park Avenue, 17th Floor New York, NY 10166 | |||
| JOHN S. SOTTOSANTI, JR. AND MARGARET A. SOTTOSANTI REVOCABLE TRUST NO. ONE DATED AUGUST 30, 1982, AND AMENDED JULY 31, 1995 | ||||
| By: | /s/ John S. Sottosanti, trustee | |||
| John S. Sottosanti, Jr. Trustee | ||||
| Address: | 9678 Claiborne Square La Jolla, CA 92037 | |||
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]
| KRG PF, LLC | ||||
| /s/ | ||||
| By: | Arcata Land Company, LLC | |||
| Its: | Manager | |||
| By: | Lane De Vries | |||
| Its: | Manager | |||
| Address: | 3160 Upper Bay Road Arcata, CA 95521 | |||
| ARTHUR B. LAFFER | ||||
| /s/ Arthur B. Laffer | ||||
| Arthur B. Laffer | ||||
| Address: | 5405 Morehouse Drive, Suite 340 San Diego, CA 92121 | |||
| MARTIN LEVY | ||||
| /s/ Martin A Levy | ||||
| Martin Levy | ||||
| Address: | 11620 Wilshire Boulevard, #1000 Los Angeles, CA 90025 | |||
| ALLAN REICH | ||||
| /s/ Allan J Reich | ||||
| Alan Reich | ||||
| Address: | 111 East Wacker Drive, Suite 2800 Chicago, IL 60602 | |||
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]
| ROBERT REICH | ||
| /s/ Robert Reich | ||
| Robert Reich | ||
| Address: | 170 Golf Road Rolling Meadows, IL 60006 | |
| FAYE H. RUSSELL TRUST U/A DATED 7/11/88 | ||
| /s/ Faye H. Russell, Ttee | ||
| Faye H. Russell, Ttee | ||
| Address: | 12390 El Camino Real San Diego, CA 92130-2081 | |
| JARED P. SCHUTZ | ||
| /s/ Jared P. Schutz | ||
| Jared P. Schutz | ||
| Address: | 1920 13th Street, Suite A Boulder, CO 80302 | |
| HENRY STRAUSS | ||
| /s/ Henry Strauss | ||
| Henry Strauss | ||
| Address: | 12 Howard Avenue Tappan, NY 10983 | |
| JEFFREY STRAUSS | ||
| /s/ Jeffrey Strauss | ||
| Jeffrey Strauss | ||
| Address: | 514 Via de La Valle Solana Beach, CA 92075 | |
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]
| WERNER STRAUSS | ||||
| /s/ Werner Strauss | ||||
| Werner Strauss | ||||
| Address: | 126 Tall Oaks Drive Wayne, NJ 07470 | |||
| TEDDY STRUHL | ||||
| /s/ Teddy Struhl | ||||
| Teddy Struhl | ||||
| Address: | 323 West 89th Street, #1B New York, NY 10024 | |||
| TELESOFT PARTNERS, L.P. | ||||
| By: | /s/ Arjun Gupta | |||
| Arjun Gupta Executive Manager of the General Partner | ||||
| Address: | 1450 Fashion Island Boulevard, Suite 610 San Mateo, CA 94404 | |||
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE
TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT]
Schedule A
EXISTING STOCKHOLDERS
JPS International LLC
Internet Floral Concepts, L.P.
Abraham J. Wynperle
Yuval Moed
Michael E. Felsher
Schedule B
NEW STOCKHOLDERS
Broadview SLP
Joel Thomas Citron
Kevin Fang
Gilbert Family Trust
I-Hatch Affiliates, L.P.
John S. Sottosanti, Jr. and Margaret
A. Sottosanti Revocable Trust No.
One Dated August 30, 1982, and
Amended July 31, 1995
KRG PF, LLC
Arthur B. Laffer
Martin Levy
Alan Reich
Robert Reich
Faye H. Russell
Jared P. Schutz
Henry Strauss
Jeffrey Strauss
Werner Strauss
Teddy Struhl
Telesoft Partners, L.P.
