EXHIBIT 4.36.1
FIRST AMENDMENT TO SERIES CC PREFERRED STOCK PURCHASE
AGREEMENT
AND
AMENDMENT TO AMENDED REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment") is dated effective as of April 24, 2001 (the
"Effective Date"), by and among VALUESTAR CORPORATION, a Colorado corporation
(the "Company"), eCOMPANIES VENTURE GROUP, L.P., a _________ limited
partnership, FIRST DATA MERCHANT SERVICES CORPORATION, a Florida corporation,
HULL CAPITAL CORP. PROFIT SHARING PLAN AND TRUST, HULL OVERSEAS LTD., a
___________ corporation, X.X. XXXX ASSOCIATES, LP, a _________ limited
partnership, X.X. XXXXXXXXX, TOWBIN CAPITAL PARTNERS I, LP, a _________ limited
partnership, DAVRIC CORPORATION, a ___________ corporation, PALERMO TRUST,
SUNRISE MANAGEMENT, INC. PROFIT SHARING PLAN, and DUCK PARTNERS, LP, a _________
limited partnership, individually a "Shareholder," and collectively, all such
individuals and entities, the "Shareholders").
RECITAL
WHEREAS, the Corporation has represented to the holders of Series CC
Stock that it will authorize additional shares of Common Stock and file with the
SEC a proxy or information statement by April 30, 2001, and due to financing
delays it may not be in the best interests of the Corporation or the holders of
Series CC Stock to amend and file prior to the completion of financing plans by
the Corporation;
WHEREAS, the Corporation has covenanted with the holders of Series CC
Stock and Series CC Warrants that it will reserve a sufficient number of shares
of its Common Stock for issuance upon conversion of all shares of Series CC
Stock and Series CC Warrants, including but not limited to any accrued dividends
thereon, together with such additional shares of Common Stock as are necessary
in the event of any adjustment to the conversion ratio of the Series CC Stock
under the Corporation's Certificate of Designation for the Series CC Stock, and
any amendments and restatements thereto,
WHEREAS, following the issuance of shares of Common Stock in connection
with the sale and issuance of certain bridge notes, the Corporation may not have
sufficient shares reserved of its authorized and unissued shares of Common Stock
for issuance to the holders of Series CC Stock and Series CC Warrants as
described above; and
WHEREAS, pursuant to paragraph 2.1 of the September 14, 2000
Registration Rights Agreement as amended by the First Amended Registration
Rights Agreement dated January 4, 2001 (the "Registration Rights Agreement"),
the Corporation represented that it would use its best efforts to prepare and
file with the Commission a Registration Statement on Form S-3 within 120 days
following the Initial Closing, and the Corporation believes that it would not be
in the best interests of the Corporation or of the holders of the Series CC
stock to do so until the planned financing is completed.
1
NOW, THEREFORE, in consideration of the Company's sale of certain
securities in accordance with the terms and provisions set forth in that certain
Bridge Loan and Common Stock Purchase Agreement dated April 24, 2001 (the "BL
Purchase Agreement"), a copy of which (together with all exhibits) each Holder
acknowledges receiving, the undersigned desire to amend certain agreements, more
fully described hereinafter, in accordance with the terms set forth in this
Agreement.
1. The April 30, 2001 date in Section 8.2 of the Series CC Purchase
Agreement dated January 4, 2001 is hereby amended and extended to May 31, 2001
and the maximum number of shares of common stock of the Corporation referenced
in that same paragraph that may be authorized is increased from 100,000,000
shares of Common Stock to 210,000,000 shares of Common and Preferred Stock.
2. In consideration of the purchase of Bridge Loan Promissory Notes and
Common Stock by the purchasers thereof, the undersigned, on behalf of all
holders of Series CC Stock, until such time that the authorized number of shares
of Common Stock and Preferred Stock is increased as contemplated by Section 1
hereof, hereby waive compliance by the Company of any and all covenants
specified in the Series CC Purchase Agreement that the Company reserve a
sufficient number of shares of its Common Stock for issuance upon conversion of
all shares of Series CC Stock and Series CC Warrants, including but not limited
to any accrued dividends thereon, together with such additional shares of Common
Stock as are necessary in the event of any adjustment to the conversion ratio of
the Series CC Stock under the Company's Certificate of Designation for the
Series CC Stock, and any amendments and restatements thereto.
3. The reference in paragraph 2.1(a) of the Registration Rights
Agreement to "within 120 days following the Initial Closing" is amended to "by
June 30, 2001" so that the opening line of 2.1(a) reads:
"(a) by June 30, 2001, use its best efforts to prepare and
file with the Commission a Registration Statement on Form S-3 . . .
[remainder of paragraph unchanged].
4. This Amendment may be signed in one or more counterparts and by
facsimile signature, each of which is an original, and all of which shall be
deemed one instrument.
CORPORATION:
VALUESTAR CORPORATION
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Its: President and Chief Executive
Officer
2
SIGNATURE PAGES
TO
FIRST AMENDMENT TO SERIES CC PREFERRED STOCK PURCHASE
AGREEMENT
AND
AMENDMENT TO AMENDED REGISTRATION RIGHTS AGREEMENT
eCOMPANIES VENTURE GROUP, L.P.
By: /s/ XXXXXX XXXXXX
-----------------
Name: Xxxxxx Xxxxxx
Its: Managing General Partner
FIRST DATA MERCHANT SERVICES
CORPORATION
By: /s/ XXXXXX XXXXXX
-----------------
Name: Xxxxxx Xxxxxx
Title: Assistant Secretary
HULL CAPITAL CORP. PROFIT
SHARING PLAN AND TRUST
By: /s/ X. XXXXXXXX XXXX
--------------------
Name: X. Xxxxxxxx Hull
Title:
HULL OVERSEAS LTD.
By: /s/ X. XXXXXXXX XXXX
--------------------
Name: X. Xxxxxxxx Hull
Title:
X.X. XXXX ASSOCIATES, LP
By: /s/ X. XXXXXXXX HULL
--------------------
Name: X. Xxxxxxxx Xxxx
Title:
3
SIGNATURE PAGES
TO
FIRST AMENDMENT TO SERIES CC PREFERRED STOCK PURCHASE
AGREEMENT
AND
AMENDMENT TO AMENDED REGISTRATION RIGHTS AGREEMENT
X.X. Xxxxxxxxx, Towbin Capital Partners
I, LP
By: /s/ XXXXXX XXXXXXX
------------------
Name: Xxxxxx Xxxxxxx
Title: A Managing Member of the GP
Davric Corporation
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: President
Palermo Trust
By: /s/ XXXXX X. XXXXXX
-------------------
Name:
Title: TRUSTEE
Sunrise Management, Inc. Profit Sharing
Plan
By: /s/ XXXXX X. XXXXXX
-------------------
Name:
Title: TRUSTEE
Duck Partners, LP
By: /s/ X. XXXXXXXX XXXX
--------------------
Name: X. Xxxxxxxx Hull
Title:
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