EXHIBIT 3.3
(Individual Notes Differ as to Name of Noteholder)
THIS NOTE, WARRANT AND THE SHARES ISSUABLE UPON WARRANT EXERCISE HAVE NOT BEEN
REGISTERED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S.
SECURITIES ACT OF 1933 ("ACT"), AND THEY MAY NOT BE TRANSFERRED, SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE BORROWER THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT.
VALUESTAR CORPORATION
12% PROMISSORY NOTE
WITH
NON-DETACHABLE STOCK PURCHASE WARRANT
Due September 30, 1998
March 31, 1997 US $50,000.00
Alameda, California
FOR VALUE RECEIVED, ValueStar Corporation, the undersigned Colorado
corporation (together with all successors, "Borrower"), hereby promises to pay
to the order of _________________, or her successors or assigns (collectively,
"Noteholder") at 000 X. Xxxxxx Xxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 or at such
other address or addresses as Noteholder may subsequently designate in writing
to Borrower, the full and true sum of Fifty Thousand and NO/100 Dollars
($50,000.00), due and payable in one (1) installment on or before September 30,
1998, unless sooner accelerated ("Maturity Date"), plus simple interest thereon
at the rate of twelve percent (12.00%) per annum, in lawful monies of the United
States of America. Interest shall be payable in monthly installments, each
respectively due on 16th day of each month during the term of this Note. If the
Maturity Date should fall on a weekend or national holiday, payment shall be due
on the following business day.
1. Any payment shall be deemed timely made if received by Noteholder within
fifteen (15) calendar days of the due date. Payments received shall be imputed
first to interest payments then due, and next to the remaining principal
balance.
2. Borrower may prepay the principal amount due under this Note at any time
or from time to time in full or in part without penalty, premium or permission.
3. Should interest not be timely paid it shall thereafter bear like
interest as the principal, but such unpaid interest so compounded shall not
exceed an amount equal to simple interest on the unpaid principal at the maximum
rate permitted by law. The entire unpaid principal balance hereunder shall
become immediately due and payable at the option and written demand of the
Noteholder if Xxxxxxxx fails to pay any interest when due.
4. (a) The Noteholder is entitled to purchase, on or before September 30,
1998 five thousand (5,000) shares of the common stock ("Common Stock") of
Borrower upon exercise of this Warrant along with presentation of the full
purchase price or in the manner prescribed by paragraph 5 below. The purchase
price of the common stock upon exercise of this Warrant ("Warrant Shares") is
equal to the Seventy Five Cents ($0.75) per share (the "Exercise Price"). This
Warrant is granted to Noteholder for valuable consideration received.
(b) This Warrant may be exercised one time, in whole only, on any
business day on or before the expiration date listed above in the manner
prescribed in paragraph 5 or by presentation and surrender hereof to the
Borrower at its principal office of a written exercise request and the
Exercise Price in lawful money of the United
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States of America in the form of a wire transfer or check, subject to
collection, for the 5,000 Warrant Shares specified in the exercise request.
Upon receipt by the Borrower of an exercise request and representations,
together with proper payment of the Exercise Price, at such office, the
Noteholder shall be deemed to be the holder of record of the Warrant
Shares, notwithstanding that the stock transfer books of the Borrower shall
then be closed or that certificates representing such Warrant Shares shall
not then be actually delivered to the Noteholder. The Borrower shall pay
any and all transfer agent fees, documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of the Warrant
Shares.
(c) The Exercise Price and the number of Shares purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon
the occurrence of the events enumerated in this paragraph.
(i) In case the Corporation shall at any time after the date
of this Warrant:
(A) Pay a dividend of its shares of its Common Stock
or make a distribution in shares of its Common Stock
with respect to its outstanding Common Stock;
(B) Subdivide its outstanding shares of Common Stock;
(C) Combine its outstanding shares of Common Stock;
or
(D) Issue any other shares of capital stock by
reclassification of its shares of Common Stock;
the Exercise Price in effect at the time of the record date of
such dividend, subdivision, combination, or reclassification
shall be proportionately adjusted so that Noteholder shall be
entitled to receive the aggregate number and kind of shares
which, if this Warrant had been exercised prior to such event,
Noteholder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination, or reclassification. Such adjustment shall be
made successively whenever any event listed above shall occur.
(ii) In case of any reorganization of the Corporation, or in
case of any reclassification or change of outstanding Common
Stock issuable upon exercise of this Warrant (other than a
change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a
subdivision or split-up or combination of the Common Stock),
or in case of any consolidation or merger of the Borrower with
or into another entity (other than a consolidation or merger
with a subsidiary or a continuing corporation), or in case of
any sale or conveyance to another entity of all or
substantially all of the property of the Corporation, then, as
a condition of such reorganization, reclassification, change,
consolidation, merger, sale, or conveyance, the Corporation or
such successor or purchasing entity, as the case may be, shall
forthwith provide to Noteholder a supplemental warrant (the
"Supplemental Warrant") which will make lawful and adequate
provision whereby Noteholder shall have the right thereafter
to receive, upon exercise of such Supplemental Warrant, the
kind and amount of shares and other securities and property
which would have been received upon such reorganization,
reclassification, change, consolidation, merger, sale, or
conveyance by a holder of a number of shares of Common Stock
equal to the number of Shares issuable upon exercise of this
Warrant immediately prior to such reorganization,
reclassification, change, consolidation, merger, sale, or
conveyance. Such Supplemental Warrant shall include provisions
for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this paragraph.
The above provisions of this paragraph shall similarly apply
to successive reorganizations, reclassifications, and changes
of Common Stock and to successive consolidations, mergers,
sales, or conveyances.
(d) Noteholder has been advised and understands that the Warrants and
the Shares purchasable thereby are characterized as "restricted securities"
under the federal securities laws because they are being acquired from
Borrower in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances.
Noteholder further understands that the certificates evidencing the Shares
will bear the following legend: "These securities have not been registered
under the Securities Act of 1933. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in
effect with respect to the securities under such Act or an opinion of
counsel satisfactory to
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the Borrower that such registration is not required or unless sold
pursuant to Rule 144 of such Act." The Noteholder understands that the
Borrower may place, and may instruct any transfer agent or depository for
the Shares to place, a stop transfer notation in the securities records in
respect of the Shares.
(e) This Warrant is non-detachable and may only be exercised by the
Noteholder, her successors or assigns, at the time of exercise. Should this
Note be prepaid in full, then upon surrender and cancellation of this Note,
the Borrower shall issue a separate Warrant to the Noteholder on the date
of final payment.
5. (a) A portion of the principal amount of this Note may, at any time but
one time only and not in part, be applied at the option of the Noteholder to
exercise the Warrant Shares described in paragraph 4 above.
(b) Noteholder's election to apply principal to the warrant exercise
shall be made in writing which unequivocally expresses Noteholder's intent
to effect the exercise. Exercise shall be deemed to occur on the date such
writing is presented to Borrower. Upon such exercise duly made, Borrower
shall deliver such common stock to Noteholder. Borrower shall bear all
expenses and charges of issuing and delivering the warrant shares.
6. This Note when duly executed and accepted by Noteholder replaces a
Promissory Note dated September 10, 1996 between the Borrower and Noteholder in
the same amount. Noteholder shall upon receipt and acceptance of this Note
tender the original of the previous note to the Borrower for cancellation.
7. In the event that this Note is placed with an attorney for collection or
that Noteholder resorts to legal process in order to enforce any rights under
this Note, Borrower shall pay all reasonable costs, including attorneys' fees,
thereby incurred by the Noteholder.
IN WITNESS WHEREOF, the undersigned Xxxxxxxx has executed this Promissory
Note and has affixed hereto its corporate seal.
VALUESTAR CORPORATION
(SEAL) By ..................................
Authorized Officer
Noteholder Acknowledgment:
__________________________
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