Exhibit 3.2
AMENDMENT NO. 1 TO
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
1-800-FLOWERS.COM, INC.
(Pursuant to Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware)
1-800-FLOWERS.COM, Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "General Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the Corporation was originally incorporated in
Delaware, and the date of its filing of its original Certificate of
Incorporation with the Secretary of State of Delaware was June 30, 1992. The
Certificate of Incorporation was amended and restated on January 12, 1995, and
was filed with the Secretary of State of the State of Delaware on January 13,
1995. A Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
June 16, 1995. A Certificate of Amendment to the Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on April 14, 1999. A Second Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
May 20, 1999. A Third Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on July 7, 1999
SECOND: That the Board of Directors duly adopted resolutions
proposing to amend the Third Amended and Restated Certificate of Incorporation
of the Corporation, declaring said amendment to be advisable and in the best
interests of the Corporation and its stockholders, and authorizing the
appropriate officers of the Corporation to solicit the written consent of the
requisite stockholders, all in accordance with the applicable provisions of
Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware;
THIRD: That the resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Third Amended and Restated Certificate of
Incorporation of the Corporation be amended as follows:
1. Article IV.A is hereby amended and restated in its entirety
as follows:
"A. CLASSES OF STOCK.
The total number of shares of stock which the Corporation shall have authority
to issue is four hundred and ten million (410,000,000), consisting of ten
million shares of Preferred Stock, par value $.01 per share (the "Preferred
Stock"), and four hundred million (400,000,000) shares of Common Stock, par
value $0.01 per share (the "Common Stock"). All of the Preferred Stock shall
initially be undesignated. Of the Common Stock, two hundred million
(200,000,000) shares shall be classified as Class A Common Stock (the "Class A
Common Stock"), and two hundred million (200,000,000) shares shall be classified
as Class B Common Stock (the "Class B Common Stock"). As shares of Class B
Common Stock are converted into shares of Class A Common Stock as described
herein, the number of shares classified as Class B Common Stock shall be reduced
and the number of shares classified as Class A Common Stock shall be increased
on a one-for-one basis."
2. Article IV.B.2 is hereby deleted in its entirety.
3. Article IV.B.3 is hereby deleted in its entirety.
4. Article IV.C.1 is hereby amended and restated in its
entirety as follows:
"C. COMMON STOCK.
STOCK SUBDIVISION, RECLASSIFICATION. Effective at the filing with the
Secretary of State of the State of Delaware of this Amendment No. 1 to the Third
Amended and Restated Certificate of Incorporation, and without further action on
the part of the holders of the Series A Preferred Stock, par value $0.01 per
share (the Series A Preferred Stock"), outstanding immediately prior thereto,
each share of Series A Preferred Stock shall be automatically converted into one
share of Class A Common Stock, subject to the subdivision described herein.
Effective at the filing with the Secretary of State of the State of Delaware of
this Amendment No. 1 to the Third Amended and Restated Certificate of
Incorporation, and without further action on the part of the holders of the
outstanding Class A Common Stock, each share of Class A Common Stock outstanding
immediately prior thereto (including shares of Class A Common Stock issued upon
the automatic conversion of the Series A Preferred Stock as described above)
shall thereafter be automatically converted into ten (10) shares of Class A
Common Stock, and without further action on the part of the holders of the Class
B Common Stock, each share of Class B Common Stock outstanding immediately prior
thereto shall thereafter be automatically converted into ten (10) shares of
Class B Common Stock."
5. Article VI is hereby amended and restated in its entirety
as follows.
"Meetings of stockholders may be held within or without the
State of Delaware, as the bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the bylaws of the
Corporation. The stockholders of the Corporation may not take any action by
written consent in lieu of a meeting."
6. The phrase "Subject to Section B.3 of Article IV,"
beginning Article X is hereby deleted in its entirety.
7. Except as provided in this Amendment No.1, all provisions
of the Third Amended and Restated Certificate of Incorporation shall remain
unaffected by the filing of this Amendment No. 1 and shall remain in full force
and effect.
* * *
FOURTH: That said amendments were duly adopted in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF, this Amendment No. 1 to the Third Amended
and Restated Certificate of Incorporation has been signed by the Chief Executive
Officer of the Corporation this ___ day of _____, 1999.
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James F. McCann, Chief Executive Officer