EXHIBIT 4.35
Warrant C-XX
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER SET FORTH HEREIN AND IN THAT CERTAIN SECURITIES
PURCHASE AGREEMENT THEREFOR BETWEEN THE COMPANY AND THE ORIGINAL HOLDER HEREOF.
VALUESTAR CORPORATION
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, VALUESTAR CORPORATION, a
Colorado corporation (the "Company"), hereby grants to ________________________
("Holder") the right to purchase from the Company up to ______________________
(_____) shares of the Common Stock of the Company (the "Warrant Shares"),
subject to the following terms and conditions:
1. Series. This Warrant is one of a duly authorized series of warrants
of the Company (which are identical except for the variations necessary to
express the identification numbers, names of the holder, number of common shares
issuable upon exercise thereof and warrant issue dates) designated as its "C
Warrants."
2. Term. This Warrant may be exercised in whole at any time during the
period from the date of issuance of this Warrant until 5:00 p.m., California
time, on September 14, 2003 (the "Exercise Period").
3. Purchase Price. The purchase price for each Warrant Share
purchasable hereunder shall be Two Dollars and Twenty-Five Cents (U.S. $2.25)
(the "Warrant Exercise Price").
4. Exercise of Warrant. The purchase rights represented by this Warrant
may be exercised by the Holder, in whole or in part, at any time and from time
to time before the end of the Exercise Period by surrender of this Warrant at
the principal office of the Company in Oakland, California (or such other office
or agency of the Company as may be designated by notice in writing to the Holder
at the address of the Holder appearing on the books of the Company), together
with the Notice of Exercise annexed hereto duly completed and executed on behalf
of the Holder accompanied by payment in full of the amount of the aggregate
Warrant Exercise Price. The Warrant Exercise Price shall be made, at the option
of the Holder, (i) in immediately available funds in United States Dollars or
(ii) if the primary market for the Warrant Shares during the ten (10) Trading
Days (as defined in Section 6 below) immediately preceding the date of exercise
is the National Association of Securities
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Dealers Automated Quotation System - National Market System or a national
securities exchange registered under the Exchange Act of 1934, as amended,
cancellation of Warrant Shares, valued at the average "Closing Price" (as
defined in Section 6 below) of the Company's Common Stock for the ten (10)
consecutive Trading Days immediately preceding the date of exercise.
Certificates for shares purchased hereunder shall be delivered to the Holder
within thirty (30) business days after the date on which this Warrant shall have
been exercised as aforesaid, but Holder shall be deemed the record owner of such
Warrant Shares as of and from the close of business on the date on which this
Warrant shall be surrendered.
5. Fractional Interest. The Company shall not be required to issue any
fractional shares on the exercise of this Warrant.
6. Redemption of Warrants. The Company may elect, by written notice as
provided herein (the "Company Notice"), to redeem, pro rata among all holders of
C Warrants, all outstanding C Warrants including this Warrant, in whole or in
part, on a date (the "Redemption Date") fixed by the Company and which shall be
a Trading Day (as defined below) during which a registration statement under the
Securities Act of 1933, as amended, covering the Warrant Shares is effective at
a price of $.01 per Warrant Share then exercisable under such outstanding C
Warrants (the "Redemption Price") at such time as the average Closing Price (as
defined below) of the Company's Common Stock for the ten (10) consecutive
Trading Days (as defined below) immediately preceding the date of the Company
Notice equals or exceeds Six Dollars ($6.00), (adjusted for stock splits and
combinations); provided, however, that this Warrant may be exercised at any time
prior to 5:00 p.m., California time, on the business day immediately preceding
the Redemption Date. Thereafter, all rights to acquire such Warrant Shares shall
terminate.
For purposes hereof, (i) the term "Trading Day" shall mean any day on
which securities are traded on the applicable securities exchange or in the
applicable securities market; and (ii) the term "Closing Price" in respect of a
Trading Day shall mean the reported closing bid prices on the principal national
securities exchange on which the Common Stock of the Company is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Association of Securities Dealers Automated
Quotation System - National Market System .
7. Warrant Confers No Rights of Shareholder. Holder shall not have any
rights as a shareholder of the Company with regard to the Warrant Shares prior
to actual exercise resulting in the purchase of the Warrant Shares.
8. Investment Representation. Neither this Warrant nor the Warrant
Shares issuable upon the exercise of this Warrant have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or under any
applicable state securities laws. Holder acknowledges by acceptance of this
Warrant that (a) it has acquired this Warrant for investment and not with a view
toward distribution; (b) it has a pre-existing personal or business relationship
with the Company, or its executive officers, or by reason of its business or
financial experience it has the capacity to protect its own interests in
connection with the transaction; and (c) except as so notified to the Company in
writing, it is an accredited investor as that term is defined in Regulation D
promulgated under the Securities Act. Holder agrees that any Warrant Shares
issuable upon exercise of this Warrant will be acquired for investment and not
with a view toward distribution; and acknowledges that to the extent such
Warrant Shares will not be registered under the Securities Act and applicable
state securities laws, that such Warrant Shares may have to be held indefinitely
unless they are subsequently registered or qualified under the Securities Act
and applicable state securities laws; or, based on an opinion of
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counsel reasonably satisfactory to the Company, an exemption from such
registration and qualification is available. Holder, by acceptance hereof,
consents to the placement of the following restrictive legends, or similar
legends, on each certificate to be issued to Holder by the Company in connection
with the issuance of such Warrant Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, OR THE HOLDER
RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE SECURITIES
SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND THE QUALIFICATION
REQUIREMENTS UNDER STATE LAW."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER SET FORTH IN THAT CERTAIN PURCHASE AGREEMENT
THEREFOR BETWEEN THE CORPORATION AND THE ORIGINAL HOLDER HEREOF."
9. Reservation of Shares. The Company agrees at all times during the
Exercise Period to have authorized and reserved, for the exclusive purpose of
issuance and delivery upon exercise of this Warrant, a sufficient number of
shares of its Common Stock to provide for the exercise of the rights represented
hereby.
10. Adjustment for Re-Classification of Capital Stock. If the Company
at any time during the Exercise Period shall, by subdivision, combination or
re-classification of securities, change any of the securities to which purchase
rights under this Warrant exist under the same or different number of securities
of any class or classes, this Warrant shall thereafter entitle the Holder to
acquire such number and kind of securities as would have been issuable as a
result of such change with respect to the Warrant Shares immediately prior to
such subdivision, combination or re-classification. If shares of the Company's
common stock are subdivided into a greater number of shares of common stock, the
purchase price for the Warrant Shares upon exercise of this Warrant shall be
proportionately reduced and the Warrant Shares shall be proportionately
increased; and conversely, if shares of the Company's common stock are combined
into a smaller number of common stock shares, the price shall be proportionately
increased, and the Warrant Shares shall be proportionately decreased.
11. Public Offering Lock-Up. In connection with any public registration
of this Company's securities, the Holder (and any transferee of Holder) agrees,
upon the request of the Company or the underwriter(s) managing such underwritten
offering of the Company's securities, not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of this Warrant, any
of the shares of Common Stock issuable upon exercise of this Warrant or any
other securities of the Company heretofore or hereafter acquired by Holder
(other than those included in the registration) without the prior written
consent of the Company and such underwriter(s), as the case may be, for a period
of time not to exceed 30 days before and one hundred eighty (180) days after the
effective date of the registration; provided, however, that Jim Stein and each
person that is an officer, director, or beneficial owner of five percent (5%) or
more of the outstanding shares of any class of
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capital stock of the Company enters into such an agreement. Upon request by the
Company, Holder (and any transferee of Holder) agrees to enter into any further
agreement in writing in a form reasonably satisfactory to the Company and such
underwriter(s). The Company may impose stop-transfer instructions with respect
to the securities subject to the foregoing restrictions until the end of said
180-day period. Any shares issued upon exercise of this Warrant shall bear an
appropriate legend referencing this lock-up provision.
12. Assignment. With respect to any offer, sale or other disposition of
this Warrant or any underlying securities, the Holder will give written notice
to the Company prior thereto, describing briefly the manner thereof, together
with a written opinion of such Holder's counsel, to the effect that such offer,
sale or other distribution may be effected without registration or qualification
(under any applicable federal or state law then in effect). Furthermore, no such
transfer shall be made unless the transferee meets the same investor suitability
standards set forth in Section 8 of this Warrant. Promptly upon receiving such
written notice and reasonably satisfactory opinion, if so requested, the
Company, as promptly as practicable, shall notify such Holder that such Holder
may sell or otherwise dispose of this Warrant or the underlying securities, as
the case may be, all in accordance with the terms of the written notice
delivered to the Company. If a determination has been made pursuant to this
Section 12 that the opinion of counsel for the Holder is not reasonably
satisfactory to the Company, the Company shall so notify the Holder promptly
after such determination has been made. Each Warrant thus transferred shall bear
the same legends appearing on this Warrant, and underlying securities thus
transferred shall bear the legends required by Section 8. The Company may impose
stop-transfer instructions in connection with such restrictions. Subject to any
restrictions on transfer described elsewhere herein, the rights and obligations
of the Company and the Holder of this Warrant shall be binding upon and benefit
the successors, assigns, heirs, administrators and transferees of the parties
hereto.
13. Notice. Any notice, demand, consent or other communication
hereunder shall be in writing addressed to the other party at its principal
office or, in respect of Holder, as its address as shown on the books of the
Company, or to such other address as such party shall have theretofore furnished
by like notice, and either served personally, sent by express, registered or
certified first class mail, postage prepaid, sent by facsimile transmission, or
delivered by reputable commercial courier. Such notice shall be deemed given (i)
when so personally delivered, or (ii) if mailed as aforesaid, five (5) days
after the same shall have been posted, or (iii) if sent by facsimile
transmission, as soon as sender receives written or telephonic confirmation that
the message has been received and such facsimile is followed the same day by
mailing by prepaid first class mail, or (iv) if delivered by commercial courier,
upon receipt.
14. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, applicable to contracts
between California residents entered into and to be performed entirely within
the State of California.
15. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which such party may be entitled.
16. Descriptive Headings. The headings used herein are descriptive only
and for the convenience of identifying provisions, and are not determinative of
the meaning or effect of any such provisions.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer this 14th day of September, 2000.
VALUESTAR CORPORATION
/s/ James Stein
James Stein, Chief Executive Officer
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NOTICE OF EXERCISE
COMMON STOCK PURCHASE WARRANT
To: VALUESTAR CORPORATION
(1) The undersigned hereby elects to purchase ______ shares of Common
Stock of ValueStar Corporation, pursuant to the terms of the attached Warrant,
and tenders herewith payment in full of the purchase price for such shares.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, for
investment, and that the undersigned will not offer, sell or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws.
(3) Please issue a certificate representing said shares of Common Stock
in the name of the undersigned.
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned.
Date: _________________ , 2000
___________________________________
(Name)
___________________________________
(Signature)
ADDRESS:
___________________________________
___________________________________
___________________________________
___________________________________
TELEPHONE AND FAX NUMBERS:
Tel: ______________________________
Fax: ______________________________
Email Contact: ____________________
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