AMENDMENT NO. 1
TO SUBSCRIPTION AGREEMENT DATED JANUARY 23, 2004
THIS AGREEMENT, dated as of April ____, 2004, is entered into by and
among Wizzard Software Corporation, a Colorado corporation (the "Company"),
and the subscribers identified on the signature page hereto (each a
"Subscriber" and collectively "Subscribers").
WHEREAS, the parties entered into a Subscription Agreement dated January
23, 2004, which provided for the issuance and registration of shares of the
Company's common stock to the Subscribers;
WHEREAS, Section 2(d) of the Subscription Agreement reads as follows:
(d) Second Closing Limitation. A Second Closing may not take place in
connection with that amount of Second Closing Shares to be sold to a
Subscriber which would be in excess of the sum of (y) the number of shares of
Common Stock beneficially owned by such Subscriber on the Second Closing Date,
and (z) the number of Second Closing Shares with respect to which the
determination of this proviso is being made on a Second Closing Date, which
would result in beneficial ownership by the Subscriber of more than 9.99% of
the outstanding shares of Common Stock of the Company on the Second Closing
Date. For the purposes of the proviso to the immediately preceding sentence,
beneficial ownership shall be determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended, and
Regulation 13d-3 thereunder. The Subscriber may revoke the restriction
described in this paragraph upon and effective after 61 days prior notice to
the Company. The Subscriber shall have the right to determine which of the
equity of the Company deemed beneficially owned by the Subscriber shall be
included in the 9.99% amount described above and which shall be allocated to
the excess above 9.99%, except that the Warrant Shares issuable upon exercise
of the Second Closing Warrants will all be allocated to the amount above
9.99%; and
WHEREAS, the parties have determined that it would be mutually
beneficial to delete the final two sentences of Section 2(d);
NOW, THEREFORE, in consideration of the mutual covenants and other
agreements contained in this Agreement the Company and the Subscribers hereby
agree as follows:
1. Section 2(d) of the Subscription Agreement is hereby amended to read
as follows:
(d) Second Closing Limitation. A Second Closing may not take place in
connection with that amount of Second Closing Shares to be sold to a
Subscriber which would be in excess of the sum of (y) the number of shares of
Common Stock beneficially owned by such Subscriber on the Second Closing Date,
and (z) the number of Second Closing Shares with respect to which the
determination of this proviso is being made on a Second Closing Date, which
would result in beneficial ownership by the Subscriber of more than 9.99% of
the outstanding shares of Common Stock of the Company on the Second Closing
Date. For the purposes of the proviso to the immediately preceding sentence,
beneficial ownership shall be determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended, and
Regulation 13d-3 thereunder.
2. All other provisions of the Subscription Agreement shall remain in
full force and effect.
"The Company"
WIZZARD SOFTWARE CORPORATION, a Colorado
Corporation
Dated: April 20, 2004 /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President & CEO
"The Subscribers"
ALPHA CAPITAL AKTIENGESELLSCHAFT
Dated: April 23, 2004 /s/
---
Name:
Title:
GENESIS MICROCAP INC.
Dated: April 22, 2004 /s/ Xxxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxxx Xxxxxxx
Title: Officer
XXXXXXXXXXX LIMITED PARTNERSHIP
Dated: April 22, 2004 /s/ X. Xxxxxxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: President
