EXHIBIT 4.19.4
THIRD AMENDMENT TO SHAREHOLDER AGREEMENT
This THIRD AMENDMENT TO SHAREHOLDER AGREEMENT (this "Amendment") made
as of September 14, 2000, by and among VALUESTAR CORPORATION, a Colorado
corporation (the "Company"), SEACOAST CAPITAL PARTNERS LIMITED PARTNERSHIP, a
Delaware Limited Partnership ("Seacoast"), PACIFIC MEZZANINE FUND, L.P. a
California limited partnership ("Pacific") and TANGENT GROWTH FUND, L.P., a
California limited partnership ("Tangent") (individually and collectively,
"Purchaser"), and Jim Stein ("Stein"), James A. Barnes ("Barnes"), and Jerry E.
Polis ("Polis") (individually and collectively, the "Shareholder").
WHEREAS, the Company, Purchaser and Shareholder have entered into that
certain Shareholder Agreement, dated as of March 31, 1999, as amended on July
22, 1999 and December 8, 1999 (collectively, the "Shareholder Agreement" and, as
further amended hereby, the "Agreement")
WHEREAS, in connection with a Series C Convertible Preferred Stock
financing of the Company, Shareholder has requested that Purchaser and
Shareholder make certain amendments to the Shareholder Agreement, and Purchaser
and Shareholder are willing to do so upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS. All capitalized terms used but not otherwise defined in
this Amendment shall have the meanings ascribed to them in the Agreement. Unless
otherwise specified, all section references herein refer to sections of the
Shareholder.
2. AMENDMENT TO ARTICLE VI - First Refusal; and Co-Sale Rights. Each of
Seacoast, Pacific and Tangent hereby agree that solely for purposes of Article
VI of the Shareholder Agreement, Shareholder shall only mean Stein. Neither
Barnes nor Polis nor any Capital Stock now owned or later acquired by either of
them or otherwise held by Barnes or Polis or their affiliates shall be subject
to any of the provisions set forth in Article VI of the Shareholder Agreement.
3. AMENDMENT TO ARTICLE VII -Voting Agreement. Each of Seacoast,
Pacific and Tangent hereby agree that Barnes' and Polis' voting obligations
under Article VIII of the Shareholders Agreement with respect to any Capital
Stock now owned or later acquired by either of them or their affiliates shall
expire at such time that Barnes or Polis, as the case may be, are no longer the
beneficial owners with respect to such shares of Capital Stock, whether or not
they continue to own other shares of Capital Stock.
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4. MISCELLANEOUS.
4.1 Survival of Representations and Warranties. All representations and
warranties made in the Shareholder, including, without limitation, any document
furnished in connection with this Amendment, shall survive the execution and
delivery of this Amendment and the Other Agreements, and no investigation by
Purchaser or any closing shall affect the representations and warranties or the
right of Purchaser to rely upon them.
4.2 Reference to Shareholder Agreement. The Shareholder Agreement and
any and all other agreements, documents or instruments now or hereafter executed
and delivered pursuant to the terms hereof or pursuant to the terms of the
Shareholder Agreement, as amended hereby, are hereby amended so that any
reference in the Shareholder Agreement and such other Agreements to the
Shareholder Agreement shall mean a reference to the Shareholder Agreement as
amended hereby.
4.3 Expenses of Purchaser. As provided in the Shareholder Agreement,
the Company agrees to pay on demand all costs and expenses incurred by Purchaser
in connection with the preparation, negotiation and execution of this Amendment
and any other agreements executed pursuant hereto, including, without
limitation, the reasonable costs and fees of Purchaser's legal counsel.
4.4 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
4.5 Successors and Assigns. This Amendment will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.
4.6 Headings. The headings of the sections and subsections of this
Amendment are inserted for convenience only and do not constitute a part of this
Amendment.
4.7 Counterparts. This Amendment may be executed in any number of
counterparts, which shall collectively constitute one agreement.
4.8 Law Governing. THIS AMENDMENT SHALL BE DEEMED TO HAVE BEEN
SUBSTANTIALLY NEGOTIATED AND MADE IN THE STATE OF CALIFORNIA AND SHALL BE
INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE UNITED STATES APPLICABLE THERETO AND THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO AN AGREEMENT EXECUTED, DELIVERED AND PERFORMED THEREIN,
WITHOUT GIVING EFFECT TO THE CHOICE-OF-LAW RULES THEREOF OR ANY OTHER PRINCIPLE
THAT COULD REQUIRE THE APPLICATION OF THE SUBSTANTIVE LAW OF ANY OTHER
JURISDICTION.
4.9 Waiver; Modification. NO PROVISION OF THIS AMENDMENT MAY BE
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WAIVED, CHANGED OR MODIFIED, OR THE DISCHARGE THEREOF ACKNOWLEDGED, ORALLY, BUT
ONLY BY AN AGREEMENT IN WRITING SIGNED BY THE PARTY AGAINST WHOM THE ENFORCEMENT
OF ANY WAIVER, CHANGE, MODIFICATION OR DISCHARGE IS SOUGHT.
4.10 Final Agreement. THE SHAREHOLDER AGREEMENT, AS AMENDED HEREBY,
REPRESENTS THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND THEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE
SHAREHOLDER AGREEMENT, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Company, Purchaser and Shareholder have caused
this Amendment to be executed and delivered as of the date first written, which
execution may be done in counterparts.
COMPANY:
VALUESTAR CORPORATION
By: /s/ James Stein
---------------
Name: James Stein
Its: Chief Executive Officer
SHAREHOLDER:
/s/ James Stein
---------------
James Stein
/s/ James A. Barnes
-------------------
James A. Barnes, individually, as President
of Sunrise Capital, Inc. and General Partner
of Tiffany Investments, and as General
Partner of Tiffany Investments Limited
Partnership
/s/ Jerry E. Polis
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Jerry E. Polis, individually, as President of
Davric Corporation and Trustee of the Jerry
E. Polis Family Trust
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PURCHASER:
SEACOAST CAPITAL PARTNERS LIMITED
PARTNERSHIP
By: Seacoast I Advisors, LLC,
its general partner
By: /s/ Jeffrey J. Holland
----------------------
Name: Jeffrey J. Holland
Its: Vice President
PACIFIC MEZZANINE FUND, L.P.
By: Pacific Private Capital
its general partner
By: /s/ Nathan W. Bell
------------------
Name: Nathan W. Bell
Its: General Partner
TANGENT GROWTH FUND, L.P.
By: Tangent Fund Management, LLC
its general partner
By: /s/ Mark P. Gilles
------------------
Name: Mark P. Gilles
Its: Vice President
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