AMENDMENT NUMBER THREE TO THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT

Exhibit 10.9

AMENDMENT NUMBER THREE TO THE

AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT

This Amendment Number Three (“Amendment”) to the Amended and Restated Stockholders’ Agreement dated as of December 17, 1999, as amended March 31, 2000 and August 11, 2000 (collectively, the “Agreement”) is made as of June 25, 2001 by and among ProFlowers, Inc., a Delaware corporation (the “Company”), certain of the individuals and entities listed on Schedule A (the “Existing Stockholders”) and Xxxxxx Xxxxx (the “New Stockholder”). Capitalized terms used herein which are not defined herein shall have the definition ascribed to them in the Agreement.

RECITALS

A. The Company has issued shares (the “Shares”) of the Company’s Common Stock to JPS International, LLC (“JPS”), which Shares are subject to certain rights and restrictions pursuant to the terms of the Agreement.

B. JPS desires to transfer 1,000 of its Shares to the New Stockholder, and in connection therewith, the Company and the Existing Stockholders desire to add the New Stockholder as a party to the Agreement and to amend certain provisions of the Agreement with respect to future transfers.

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 December 17, 1999, (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 December 17, 1999 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 Stockholder shall be deemed to have entered into and become a party to the Agreement and shall be deemed a “Stockholder” for all purposes under the Agreement.

2. AMENDMENT TO AGREEMENT.

Subsection (d) under the definition of the terms “Transfer” or “Transferred” in Section 1 of the Agreement shall be amended and restated in its entirety to read as follows:

“‘Transfer’ and ‘Transferred’ shall mean and include any sale, assignment or other transfer except for:

. . .

(d) any transfers of Equity by gift or for no consideration during a Stockholder’s lifetime or on a Stockholder’s death by will or intestacy, provided that the Company gives its consent prior to such transfer and each transferee or other recipient executes a counterpart copy of this Agreement and becomes bound thereby as a Stockholder;”

3. EFFECT OF AMENDMENT.

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

4. 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.

5. 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.

6. 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.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

2

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

COMPANY:				PROFLOWERS, INC.,
				a Delaware corporation
				By:
						Xxxxxx X. Xxxxxx
						Chief Financial Officer
		Address:		0000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxx
				Xxx Xxxxx, XX 00000
NEW STOCKHOLDER:				XXXXXX XXXXX
				By:		/s/ Xxxxxx Xxxxx
						Xxxxxx Xxxxx
		Address:		0000 Xxxxx Xxxxxx Xxx
				Xxxxxxx, XX 00000
EXISTING STOCKHOLDERS:				JPS INTERNATIONAL, LLC
				By:		/s/ Xxxxx X. Xxxxx
						Xxxxx X. Xxxxx
						Managing Member
		Address:		0000 Xxxxxx Xxxxxx, Xxxx X
				Xxxxxxx, XX 00000
				INTERNET FLORAL CONCEPTS, L.P.
				By:		JPS International, LLC
				Its:		General Partner
				By:		/s/ Xxxxx X. Xxxxx
						Xxxxx X. Xxxxx
						Managing Member
		Address:		0000 Xxxxxx Xxxxxx, Xxxx X
				Xxxxxxx, XX 00000

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE

TO THE STOCKHOLDERS’ AGREEMENT]

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

COMPANY:				PROFLOWERS, INC.,
				a Delaware corporation
				By:		/s/ Xxxxxx X. Xxxxxx
						Xxxxxx X. Xxxxxx
						Chief Financial Officer
		Address:		0000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxx
				Xxx Xxxxx, XX 00000
NEW STOCKHOLDER:				XXXXXX XXXXX
				By:
						Xxxxxx Xxxxx
		Address:		0000 Xxxxx Xxxxxx Xxx
				Xxxxxxx, XX 00000
EXISTING STOCKHOLDERS:				JPS INTERNATIONAL, LLC
				By:
						Xxxxx X. Xxxxx
						Managing Member
		Address:		0000 00xx Xxxxxx, Xxxxx X
				Xxxxxxx, XX 00000
				INTERNET FLORAL CONCEPTS, L.P.
				By:		JPS International, LLC
				Its:		General Partner
				By:
						Xxxxx X. Xxxxx
						Managing Member
		Address:		0000 00xx Xxxxxx, Xxxxx X
				Xxxxxxx, XX 00000

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE

TO THE STOCKHOLDERS’ AGREEMENT]

				XXXXX X. XXXXX
				Xxxxx X. Xxxxx
		Address:		0000 00xx Xxxxxx, Xxxxx X
				Xxxxxxx, XX 00000
				XXXXXXX X. XXXXXXXX
				/s/ Xxxxxxx X. Xxxxxxxx
				Xxxxxxx X. Xxxxxxxx
		Address:		0000 X.X. 00xx Xxx
				Xxxx Xxxxx, XX 00000
				XXXXX XXXX
				/s/ Xxxxx Xxxx
				Xxxxx Xxxx
		Address:		0000 X.X. 00xx Xxxxxx
				Xxxxxxxx, XX 00000
				XXXXXXX X. XXXXXXX
				/s/ Xxxxxxx X. Xxxxxxx
				Xxxxxxx X. Xxxxxxx
		Address:		0 Xxxxx Xxxx Xxxxx, Xxx. 0000
				Xxxxx, XX 00000

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE

TO THE STOCKHOLDERS’ AGREEMENT]

				XXXXX X. XXXXX
				/s/ Xxxxx X. Xxxxx
				Xxxxx X. Xxxxx
		Address:		0000 Xxxxxx Xxxxxx, Xxxx X
				Xxxxxxx, XX 00000
				XXXXXXX X. XXXXXXXX
				Xxxxxxx X. Xxxxxxxx
		Address:		0000 X.X. 00xx Xxx
				Xxxx Xxxxx, XX 00000
				XXXXX XXXX
				Xxxxx Xxxx
		Address:		0000 X.X. 00xx Xxxxxx
				Xxxxxxxx, XX 00000
				XXXXXXX X. XXXXXXX
				Xxxxxxx X. Xxxxxxx
		Address:		0 Xxxxx Xxxx Xxxxx, Xxx. 0000
				Xxxxx, XX 00000

[SIGNATURE PAGE TO AMENDMENT NUMBER THREE

TO THE STOCKHOLDERS’ AGREEMENT]

Schedule A

EXISTING STOCKHOLDERS

Xxxxx X. Xxxxx

Xxxx Xxxxxxx

Xxxxxxx Xxx

JPS International, LLC

Xxxxxxx Xxxxxxx

Xxx Xxxxxxxx

Flower Farm International

Xxxxx Xxxx

Collector Café Ltd.

XXX.xxx, Inc.

Xxxxxxxx Xxxxx

Xxxxxx Xxxxxxx

Xxxxx X. Xxxxxxx

Xxxxx X. Xxxxx

Xxxxxx X. Xxxxxxxx

Xxxxxx X. Chirtie

Pandesic LLC

Internet Floral Concepts, L.P.

Broadview SLP

Xxxx Xxxxxx Xxxxxx

Xxxxx Xxxx

Xxxxxxx Family Trust

I-Hatch Affiliates, L.P.

Xxxx X. Xxxxxxxxxx, Xx. and Xxxxxxxx

X. Xxxxxxxxxx Revocable Trust No.

One Dated August 30, 1982, and

Amended July 31, 1995

KRG PF, LLC

Xxxxxx X. Xxxxxx

Xxxxxx Xxxx

Xxxx Xxxxx

Xxxxxx Xxxxx

Xxxx Xxxxxx Xxxxxxx Trust U/A/D dated 7/11/88

Xxxxx Xxxxxxx

Xxxxxxx Xxxxxxx

Xxxxxx Xxxxxxx

Xxxxx Xxxxxx

Telesoft Partners, L.P.

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