EXHIBIT 4.36.2
SECOND AMENDMENT TO SERIES CC PREFERRED STOCK PURCHASE
AGREEMENT
AND
AMENDMENT TO AMENDED REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment") is dated effective as of June 27, 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 ___________
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, Company has filed with the SEC a proxy for a special
shareholder meeting currently scheduled on July 20, 2001.
WHEREAS, at this meeting it is the Company's intent to adopt and
approve amended and restated articles of incorporation that, inter alia,
increase the authorized number of shares of Common Stock from 50,000,000 to
200,000,000 shares and the authorized number of shares of Preferred Stock from
5,000,000 to 10,000,000 shares (the "Amended Articles").
WHEREAS, the Company intends to (i) submit the proxy statement and
Amended Articles to the stockholders for their approval, (ii) recommend to the
stockholders that they approve and adopt the Restated Articles and (iii)
promptly following such approval and adoption, file the Amended and Restated
Articles with the Colorado Secretary of State; 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"),
and an amendment dated April 24, 2001, the Company represented that it would use
its best efforts to prepare and file with the Commission a Registration
Statement on Form S-3 by June 30, 2001.
WHEREAS, the Company believes that it would not be in the best
interests of the Company or of the holders of the Series CC stock to do so as
there is not sufficient authorized shares available for the registration to be
completed until the authorized shares are increased as contemplated above; and
WHEREAS, pursuant to Article IX subsection (x) of the Series CC
Preferred Stock Purchase Agreement, the Company is limited in its ability to
attract and reward employees due to the increased
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number of shares outstanding in the Company;
NOW, THEREFORE, to allow the Company to proceed in an orderly and
efficient manner with the foregoing plans, the undersigned desire to amend
certain agreements, more fully described hereinafter, in accordance with the
terms set forth in this Agreement.
1. The reference in paragraph 2.1(a) of the Registration Rights
Agreement to "within 120 days following the Initial Closing," having been once
amended to June 30, 2001 is further amended to "by September 30, 2001" so that
the opening line of 2.1(a) reads:
"(a) by September 30, 2001, use its best efforts to prepare
and file with the Commission a Registration Statement on Form S-3 . . .
[remainder of paragraph unchanged].
2. The reference in Article IX subsection (x) of the Series CC
Preferred Stock Purchase Agreement is hereby amended to replace "in excess of
5,000,000 shares." to "in excess of 10,000,000 additional shares available for
option grants."
3. 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.
COMPANY:
VALUESTAR CORPORATION
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Its: President and Chief Executive Officer
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SIGNATURE PAGES
TO
SECOND 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/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
HULL CAPITAL CORP. PROFIT
SHARING PLAN AND TRUST
By: /s/ X. Xxxxxxxx Xxxx
--------------------
Name: X. Xxxxxxxx Hull
Title: Trustee
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:
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SIGNATURE PAGES
TO
SECOND 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: Xxxxx X. Xxxxxx
Title: Trustee
SUNRISE MANAGEMENT, INC. PROFIT SHARING
PLAN
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Trustee
DUCK PARTNERS, LP
By: /s/ X. Xxxxxxxx Xxxx
--------------------
Name: X. Xxxxxxxx Hull
Title:
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