Exhibit 4.11
AMENDMENT TO TRANSACTION DOCUMENTS AGREEMENT
Agreement made this ____ day of December, 2006 ("Amendment") among
Wizzard Software Corp., a Colorado corporation (the "Company"), and the
signators hereto who are Subscribers under a certain Subscription Agreement
with the Company dated October 27, 2006 ("Subscribers").
For good and valuable mutual consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. All capitalized terms herein shall have the meanings ascribed to
them in the Transaction Documents (as defined in the Subscription Agreement).
2. The Company and the Subscribers hereby agree to amend the
Transaction Documents to reflect the additional Purchase Price ("Additional
Purchase Price") as set forth on Schedule A hereto. Purchase Price shall mean
the aggregate of the Purchase Price in connection with the October 27, 2006
Closing Date and the Additional Purchase Price.
3. The Company and Subscribers hereby agree to waive any
disproportionality between the Purchase Price of the October 27, 2006 Closing
Date and the Additional Purchase Price of the Second Closing.
4. An additional Closing (the "Second Closing") shall take place on
or before December 15, 2006 (the "Second Closing Date") in connection with the
Additional Purchase Price and the Notes and Warrants issuable in connection
therewith, upon satisfaction of all conditions to Closing set forth in the
Transaction Documents and in this Amendment. The amount of the Additional
Purchase Price and all documents to be delivered hereunder will be deposited
and held with the Escrow Agent and released pursuant to the Escrow Agreement.
The Notes and Warrants to be delivered on the Second Closing Date are included
in the definition of "Securities" in the Subscription Agreement.
5. All the representations, warranties and undertakings made by the
Company in the Transaction Documents as of the Closing Date are hereby made by
the Company as of the Second Closing Date, as if such representations,
warranties and undertakings were also made and given on the Second Closing
Date.
6. All the representations, warranties and undertakings made by the
Subscribers contained in the Transaction Documents as of the Closing Date are
hereby made by the Subscribers as of the Second Closing Date, as if such
representations, warranties and undertakings were also made and given on the
Second Closing Date.
7. All of the covenants and conditions set forth in the Subscription
Agreement are hereby adopted and renewed by the Company as of and for the
Second Closing Date.
8. All of the covenants and conditions set forth in the Subscription
Agreement are hereby adopted and renewed by the Subscribers as of and for the
Second Closing Date.
9. On or before the Second Closing Date, the Company will deliver to
the Subscribers, Notes, and Warrants issued as of the Second Closing Date in
the amounts set forth on Schedule A hereto in connection with the Additional
Purchase Price which the Subscribers will deposit with the Escrow Agent on or
before the Second Closing Date.
10. The Filing Date and Effective Date for all Registrable Securities,
including all Registrable Securities relating to the Additional Purchase
Price, Notes and Warrants to be issued on the Second Closing Date shall be as
described in Section 11.1(iv) of the Subscription Agreement.
11. The Maturity Date of the Notes to be issued on the Second Closing
Date will be the same as the Maturity Date of the Notes issued on the Closing
Date.
12. The Warrants to be issued on the Second Closing Date will be
identical to the Warrants issued on the Closing Date.
13. On or before the Second Closing Date, the Company will deliver to
the Subscribers the legal opinion described in Section 6 of the Subscription
Agreement in relation to the Second Closing, Additional Purchase Price, Notes,
and Warrants to be delivered on the Second Closing Date, which opinion will be
substantively identical to the legal opinion delivered in connection with the
Closing.
14. In connection with the Additional Purchase Price, the Due
Diligence Fee Recipient will receive a Due Diligence Fee in the form of a Note
exactly and in the same proportion as received in connection with the October
27, 2006 Closing.
15. The attorney for the Subscribers will receive additional Legal
Fees from the Company of $3,000 which will be payable on the Second Closing
Date out of the Escrowed Payment (as defined in the Escrow Agreement).
16. The parties hereto agree to expeditiously proceed with the Second
Closing.
17. All other terms of the Transaction Documents shall remain in full
force and effect and govern this Agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first written above.
"COMPANY" "ESCROW AGENT"
WIZZARD SOFTWARE CORP. GRUSHKO & XXXXXXX, P.C.
a Colorado corporation
By: ____________________________ By:____________________________________
Its: ___________________________
"SUBSCRIBERS":
________________________________ _______________________________________
ALPHA CAPITAL ANSTALT WHALEHAVEN CAPITAL FUND LTD.
________________________________
GENESIS MICROCAP INC.
SCHEDULE A TO AMENDMENT
SUBSCRIBER ADDITIONAL PURCHASE PRICE PURCHASE PRICE OF OCTOBER
27, 2006
ALPHA CAPITAL ANSTALT $100,000.00 $1,000,000.00
Pradanfant 7 Promissory Note dated
9490 Furstentums October 3, 2006 as
Vaduz, Lichtenstein payment for subscription
Fax: 000-00-00000000
WHALEHAVEN CAPITAL FUND $350,000.00 $400,000.00
LTD.
0xx Xxxxx, 00 Xxx-Xxxxxxx
Xxxx
Xxxxxxxx, Xxxxxxx XX00
Fax: (000) 000-0000
GENESIS MICROCAP $175,000.00 $350,000.00
c/o SDC Capital LLC
00 Xxxx Xxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
TOTAL $625,000.00 $1,750,000.00
