Exhibit 10.3
EXECUTION COPY
CONSENT AND AMENDMENT NO. 1 TO
INVESTMENT AGREEMENT
THIS CONSENT AND AMENDMENT NO. 1 TO INVESTMENT AGREEMENT (this
"CONSENT AND AMENDMENT"), dated as of May 20, 1999, among Chase Venture Capital
Associates, a California limited partnership formerly known as Chemical Venture
Capital Associates ("CHASE"), 1-800-FLOWERS.COM, Inc., a Delaware corporation
formerly known as Teleway, Inc. ("FLOWERS"), and James F. McCann ("MCCANN").
WHEREAS, McCann and the predecessor entities of Chase and
Flowers are party to the Investment Agreement, dated January 16, 1995 (the
"INVESTMENT AGREEMENT"), whereby Flowers issued to Chase 26,345 shares of its
Class C Common Stock, par value $0.01 per share (the "CLASS C COMMON STOCK") and
warrants (the "WARRANTS") to purchase 237,104 shares of its Class B Common
Stock, par value $0.01 per share (the "CLASS B COMMON STOCK"); and
WHEREAS, Flowers and McCann desire to sell certain shares of
Flowers capital stock to Chase and certain other investors in a private
placement offering (the "PRIVATE PLACEMENT"), and
WHEREAS, Flowers desires to register shares of its capital
stock under the Securities Act of 1933, as amended, for sale to the public in an
initial public offering (the "IPO"); and
WHEREAS, in connection with the Private Placement and the IPO,
Flowers deems it necessary to recapitalize its capital stock (the
"RECAPITALIZATION"); and
WHEREAS, Chase considers the consummation of the Private
Placement, the IPO and the Recapitalization to be in the best interests of
Flowers and to be in its best interests as a stockholder of Flowers; and
WHEREAS, as certain provisions of the Investment Agreement
would inhibit or prevent the consummation of the Private Placement, the IPO and
the Recapitalization, the parties desire to amend the Investment Agreement and
consent to certain events as provided herein;
NOW THEREFORE, for good and valuable consideration, the
receipt of which is hereby recognized, the parties agree as follows:
1. AMENDMENTS TO INVESTMENT AGREEMENT.
1.1. REFERENCES IN INVESTMENT AGREEMENT.All references in the
Investment Agreement to CVCA shall be deemed references to Chase and all
references to the Company
shall be deemed references to Flowers.
1.2. RECAPITALIZATION. Upon a Recapitalization Event (as
defined in section 2.1 below), section 7.11 of the Investment Agreement shall be
terminated in its entirety.
1.3. ELIMINATION OF CERTAIN COVENANTS. Upon the consummation
of the IPO, (the "IPO CLOSING"), sections 6.1, 6.3 and 6.6(d) of the Investment
Agreement shall be terminated in their entirety. In addition, section 6.6(c) is
hereby amended and restated in its entirety as follows:
"The consent requirements set forth in clauses (a) and (b)
above shall terminate upon a Recapitalization Event (as defined in the
Consent and Amendment No. 1 to Investment Agreement, dated May 20,
1999)."
1.4. REGISTRATION RIGHTS. Upon the consummation of the Private
Placement (the "PRIVATE PLACEMENT Closing"), section 8 of the Investment
Agreement shall be terminated in its entirety. In connection with the Private
Placement, Chase, Flowers and the investors purchasing capital stock in the
Private Placement shall enter into an Investors' Rights Agreement, substantially
in the form of EXHIBIT B hereto, providing Chase with the investors' rights set
forth therein.
1.5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION. Section 10 of the Investment Agreement is hereby amended and
restated in its entirety as follows:
"SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
All representations and warranties contained in this Agreement will
terminate on the date hereof. All rights to indemnification arising
under this Agreement shall terminate on the date hereof."
1.6. BOARD REPRESENTATION. Upon a Recapitalization Event,
section 7.6 of the Investment Agreement shall be terminated in its entirety.
1.7. CONVERSION OF CLASS A COMMON STOCK; TREATMENT OF DEBT.
Upon a Recapitalization Event, sections 7.9 and 7.10 of the Investment Agreement
shall be terminated in their entirety.
2. CONSENTS.
2.1. CONSENT TO SECOND AND THIRD AMENDED AND RESTATED
CERTIFICATES.
(a) At the earlier of (i) the closing of the first registered
offering of a class of common stock of the Company with gross proceeds
to the Company of not less than $25 million (a "QUALIFIED PUBLIC
OFFERING") or (ii) the closing of a private placement of securities of
the Company with gross proceeds to the Company of not less than $50
million (the earlier of such events, the "RECAPITALIZATION EVENT"), the
Company's Amended and Restated Certificate of Incorporation shall be
amended and restated in the
form of the Second Amended and Restated Certificate of Incorporation
attached hereto as EXHIBIT A-1 (the "SECOND AMENDED AND RESTATED
CERTIFICATE"), and Chase hereby consents to the amendment and
restatement of the Amended and Restated Certificate of Incorporation in
the form of such Second Amended and Restated Certificate and the filing
thereof with the Secretary of State of the State of Delaware upon a
Recapitalization Event. Following the date on which all of the waiting
periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(the "HSR Act") have expired or been terminated relating to the filings
made thereunder by the Company and certain investors in connection with
the Private Placement, the Second Amended and Restated Certificate
shall be amended and restated in the form of the Third Amended and
Restated Certificate of Incorporation attached hereto as EXHIBIT A-2
(the "Third Amended and Restated Certificate"), and Chase hereby
consents to the amendment and restatement of the Second Amended and
Restated Certificate in the form of such Third Amended and Restated
Certificate and the filing thereof with the Secretary of State of the
State of Delaware at such time.
(b) RECAPITALIZATION. In accordance with the terms of the
Second Amended and Restated Certificate, the Company's capital stock
shall be reclassified upon a Recapitalization Event as follows:
(i) each share of Class A Common Stock shall, without
further action on the part of the holder thereto, convert into
one share of class A common stock, $0.01 par value, with
rights and privileges thereto as described in the Second
Amended and Restated Certificate (the "NEW CLASS A");
(ii) each share of Class B Common Stock shall,
without further action on the part of the holder thereto,
convert into one share of Class B common stock, $0.01 par
value, with rights and thereto as described in the Second
Amended and Restated Certificate (the "NEW CLASS B"); and
(iii) each share of Class C Common Stock shall,
without further action on the part of the holder thereto,
convert into one share of New Class B and one share of series
C preferred stock, with rights and privileges thereto as
described in the Second Amended and Restated Certificate (the
"SERIES C PREFERRED STOCK"). In accordance with the Second
Amended and Restated Certificate, the shares of Series C
Preferred Stock owned by Chase shall be automatically redeemed
by the Company immediately upon their issuance for an amount
equal to $14,914,753.00.
(iv) after the reclassification of the Company's
capital stock as provided herein, all references in the
Investment Agreement to the Class A Common Stock and Class B
Common Stock shall be deemed to be references to the New Class
A and New Class B, consistent with the above.
(d) WARRANTS AND WARRANT SHARES.
(i) Upon a Recapitalization Event and the
reclassification of
the Company's capital stock as provided in paragraph (b)
above, the Warrants shall be automatically amended to provide
that upon exercise, each Warrant shall represent the right to
acquire a share of New Class B and shall no longer represent
the right to acquire a share of Class B Common Stock; and
(ii) Upon the subsequent effectiveness of the Third
Amended and Restated Certificate, the Warrants shall be
automatically amended to provide that upon exercise, each
Warrant shall represent the right to acquire a share of class
A common stock, $0.01 par value, with rights and preferences
thereto as described in the Third Amended and Restated
Certificate, and shall no longer represent the right to
acquire a share of New Class B.
(e) Upon the effectiveness of the Third Amended and Restated
Certificate, Chase shall immediately convert each and every share of
New Class B owned by it, pursuant to Section B.4(a) of Article IV of
the Third Amended and Restated Certificate, into one share of class A
common stock, $0.01 par value, with rights and privileges thereto as
described in the Third Amended and Restated Certificate.
2.2. WAIVER AND TERMINATION OF CO-SALE RIGHTS. Chase hereby
waives all of its rights contained in section 7.2 in connection with the Private
Placement. Upon a Recapitalization Event, section 7.2 of the Investment
Agreement shall be terminated in its entirety.
2.3. WAIVER AND TERMINATION OF CERTAIN PRE-EMPTIVE RIGHTS.
Chase hereby waives all of its rights contained in section 7.3 in connection
with the Private Placement. Upon a Recapitalization Event, section 7.3 of the
Investment Agreement shall be terminated in its entirety.
2.4. EFFECTIVENESS. The effectiveness of this Consent and
Amendment is conditioned upon the execution and delivery by Flowers and Chase of
the Stock Purchase Agreement and the Investors' Rights Agreement, each dated as
of May 20, 1999, among Chase, Flowers, James F. McCann, Chris G. McCann, and
certain other investors, in connection with the Private Placement.
3. MISCELLANEOUS
3.1. GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of New York, exclusive of the provisions
thereof governing conflicts of laws.
3.2. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.3. NOTICES. Any notice, request, demand or other
communication required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery to the party to be
notified, upon the date of transmittal of services via telecopy
to the party to whom notice is being given, or on the fifth day after deposit in
the United States Post Office, by registered or certified mail, with postage and
fees prepaid, return receipt requested, and addressed to the other party to:
(a) if to Flowers and McCann, to James F. McCann,
Chief Executive Officer, 1-800-FLOWERS.COM, Inc., 1600 Stewart
Avenue, Westbury, New York, 11590, with a copy to Jerry
Gallagher, Gallagher, Walker, Bianco & Plastaras, 98 Willis
Avenue, New York 11501, and Alexander D. Lynch, Brobeck,
Phleger & Harrison LLP, 1633 Broadway New York, New York,
10019.
(b) if to Chase, to Jeffrey C. Walker, 380 Madison
Avenue, 12th Floor, New York, New York 10017, with a copy to
William E. Curbow, Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, New York 10017.
3.4. REMEDIES; SEVERABILITY. It is specifically understood and
agreed that any breach of the provisions of this Consent and Amendment by any
person subject hereto will result in irreparable injury to the other parties
hereto, that the remedy at law alone will be an inadequate remedy for such
breach, and that, in addition to any other remedies which they may have, such
other parties may enforce their respective rights by actions for specific
performance (to the extent permitted by law). Whenever possible, each provision
of this Consent and Amendment shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Consent
and Amendment shall be deemed prohibited or invalid under such applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, and such prohibition or invalidity shall not invalidate the
remainder of such provision or the other provisions of this Consent and
Amendment.
3.5. AMENDMENTS, WAIVERS AND CONSENTS. For the purposes of
this Amendment and Consent and all agreements executed pursuant hereto, no
course of dealing between or among any of the parties hereto and no delay on the
part of any party hereto in exercising any rights hereunder or thereunder shall
operate as a waiver of the rights hereof and thereof. No provision hereof may be
waived otherwise than by a written instrument signed by the party or parties so
waiving such covenant or other provision as contemplated herein. No amendment to
this Consent and Amendment may be made without the written consent of the
Flowers, McCann and Chase. Except as provided in this Consent and Amendment, all
provisions contained in the Investment Agreement shall remain in full force and
effect and shall be unaffected by the provisions hereof.
3.6. NO THIRD-PARTY BENEFICIARIES. The parties hereto
specially acknowledge and agree that there are no intended third-party
beneficiaries to this Consent and Amendment.
3.7. ENTIRE AGREEMENT. This Consent and Amendment and all
documents and instruments referred to herein constitute the entire agreement
among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein.
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IN WITNESS WHEREOF, the parties have caused this Consent and
Amendment to be duly executed and delivered as of the date first above written.
1-800-FLOWERS.COM, INC.
By: /s/ James F. McCann
Name: James F. McCann
Title: Chief Executive Officer
CHASE VENTURE CAPITAL ASSOCIATES
By: /s/ Jeffrey C. Walker
Name: Jeffrey C. Walker
Title: Managing Partner
Address: 380 Madison Avenue, 12th Floor
New York, New York 10017
JAMES F. MCCANN
/s/ James F. McCann
_____________________________________
Address: c/o: 1-800-FLOWERS.COM, Inc.
1600 Stewart Avenue
Westbury, New York 11590