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 Lauren Polis (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:
	  	  


	 	  	 	  	 	  	 Steven J. Kemper

	 	  	 	  	 	  	 Chief Financial Officer

			
	 	  	 Address:
	  	 5005 Wateridge Vista Drive, Second Floor

	 	  	 	  	 San Diego, CA 92121

			
	NEW STOCKHOLDER:	  	 	  	 LAUREN POLIS

				
	 	  	 	  	 By:
	  	 /s/ Lauren Polis


	 	  	 	  	 	  	 Lauren Polis

			
	 	  	 Address:
	  	 2998 Shady Hollow Way

	 	  	 	  	 Boulder, CO 80304

			
	EXISTING STOCKHOLDERS:	  	 	  	 JPS INTERNATIONAL, LLC

				
	 	  	 	  	 By:
	  	 /s/ Jared S. Polis


	 	  	 	  	 	  	 Jared S. Polis

	 	  	 	  	 	  	 Managing Member

			
	 	  	 Address:
	  	 1725 Walnut Street, Unit A

	 	  	 	  	 Boulder, CO 80302

			
	 	  	 	  	 INTERNET FLORAL CONCEPTS, L.P.

				
	 	  	 	  	 By:
	  	 JPS International, LLC

	 	  	 	  	 Its:
	  	 General Partner

				
	 	  	 	  	 By:
	  	 /s/ Jared S. Polis


	 	  	 	  	 	  	 Jared S. Polis

	 	  	 	  	 	  	 Managing Member

			
	 	  	 Address:
	  	 1725 Walnut Street, Unit A

	 	  	 	  	 Boulder, CO 80302


  
 [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/ Steven J. Kemper


	 	  	 	  	 	  	 Steven J. Kemper

	 	  	 	  	 	  	 Chief Financial Officer

			
	 	  	 Address:
	  	 5005 Wateridge Vista Drive, Second Floor

	 	  	 	  	 San Diego, CA 92121

			
	NEW STOCKHOLDER:	  	 	  	 LAUREN POLIS

				
	 	  	 	  	 By:
	  	  


	 	  	 	  	 	  	 Lauren Polis

			
	 	  	 Address:
	  	 2998 Shady Hollow Way

	 	  	 	  	 Boulder, CO 80304

			
	EXISTING STOCKHOLDERS:	  	 	  	 JPS INTERNATIONAL, LLC

				
	 	  	 	  	 By:
	  	  


	 	  	 	  	 	  	 Jared S. Polis

	 	  	 	  	 	  	 Managing Member

			
	 	  	 Address:
	  	 1920 13th Street, Suite A

	 	  	 	  	 Boulder, CO 80302

			
	 	  	 	  	 INTERNET FLORAL CONCEPTS, L.P.

				
	 	  	 	  	 By:
	  	 JPS International, LLC

	 	  	 	  	 Its:
	  	 General Partner

				
	 	  	 	  	 By:
	  	  


	 	  	 	  	 	  	 Jared S. Polis

	 	  	 	  	 	  	 Managing Member

			
	 	  	 Address:
	  	 1920 13th Street, Suite A

	 	  	 	  	 Boulder, CO 80302


  
 [SIGNATURE PAGE TO
AMENDMENT NUMBER THREE 
 TO THE STOCKHOLDERS’ AGREEMENT] 








	 	 	 	  	 JARED S. POLIS

			
	 	 	 	  	  


	 	 	 	  	 Jared S. Polis

			
	 	 	 Address:
	  	 1920 13th Street, Suite A

	 	 	 	  	 Boulder, CO 80302

			
	 	 	 	  	 ABRAHAM J. WYNPERLE

			
	 	 	 	  	 /s/ Abraham J. Wynperle


	 	 	 	  	 Abraham J. Wynperle

			
	 	 	 Address:
	  	 3066 N.W. 30th Way

	 	 	 	  	 Boca Raton, FL 33431

			
	 	 	 	  	 YUVAL MOED

			
	 	 	 	  	 /s/ Yuval Moed


	 	 	 	  	 Yuval Moed

			
	 	 	 Address:
	  	 7050 N.W. 70th Street

	 	 	 	  	 Parkland, FL 33067

			
	 	 	 	  	 MICHAEL E. FELSHER

			
	 	 	 	  	 /s/ Michael E. Felsher


	 	 	 	  	 Michael E. Felsher

			
	 	 	 Address:
	  	 1 Grove Isle Drive, Apt. 1202

	 	 	 	  	 Miami, FL 33133


  
 [SIGNATURE PAGE TO
AMENDMENT NUMBER THREE 
 TO THE STOCKHOLDERS’ AGREEMENT] 








	 	 	 	  	 JARED S. POLIS

			
	 	 	 	  	 /s/ Jared S. Polis


	 	 	 	  	 Jared S. Polis

			
	 	 	 Address:
	  	 1725 Walnut Street, Unit A

	 	 	 	  	 Boulder, CO 80302

			
	 	 	 	  	 ABRAHAM J. WYNPERLE

			
	 	 	 	  	  


	 	 	 	  	 Abraham J. Wynperle

			
	 	 	 Address:
	  	 3066 N.W. 30th Way

	 	 	 	  	 Boca Raton, FL 33431

			
	 	 	 	  	 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. 1702

	 	 	 	  	 Miami, FL 33133


  
 [SIGNATURE PAGE TO
AMENDMENT NUMBER THREE 
 TO THE STOCKHOLDERS’ AGREEMENT] 







 Schedule A 
  
 EXISTING STOCKHOLDERS 
  

	 Jared S. Polis

	 Bill Strauss

	 Barbara Bry

	 JPS International, LLC

	 Michael Felsher

	 Abe Wynperle

	 Flower Farm International

	 Yuval Moed

	 Collector Café Ltd.

	 SLI.com, Inc.

	 Jonathan Kagan

	 Lester Pollack

	 Bruce B. Pollack

	 David B. Golub

	 Robert A. Bergmann

	 Norman D. Chirtie

	 Pandesic LLC

	 Internet Floral Concepts, L.P.

	 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 Hunter Russell Trust U/A/D dated 7/11/88

	 Henry Strauss

	 Jeffrey Strauss

	 Werner Strauss

	 Teddy Struhl

	 Telesoft Partners, L.P.


  

 A-1