AMENDED AND RESTATED LOAN AGREEMENT
DATED: February 2, 2001
PARTIES: SAVAGE HOLDINGS, INC., a Minnesota corporation, with an
address at 2000 S. Plymouth Road, Suite 210, Minnetonka, MN
55305 ("Lender"); and
WIZZARD SOFTWARE CORPORATION, a Delaware corporation, with an
address at 424 Gold Way, Pittsburgh, PA 15213 (the
"Company").
1.1 Loan Agreement. The Company hereby borrows from the Lender, and
Lender hereby agrees to lend to the Company, up to $1,000,000 (the "Loan") as
hereinafter provided.
(a) The Loan in the principal amount of $1,000,000 due August
10, 2001 with simple interest at the rate of twelve and one-half (12.5%)
percent per annum and is evidenced by a Convertible Promissory Note (the
"Note"), substantially in the form of Exhibit A annexed hereto; and
(b) The Loan is to be made in advances of $500,000 when
requested by the Company as provided in the Note unless otherwise evidenced by
advances in any lesser amount.
(c) The Note is convertible into shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), as provided in Exhibit A.
1.2 Warrants. As additional consideration for entering into this Loan
Agreement, the Company shall issue and deliver to the Lender Warrants (the
"Warrants") to purchase 65,000 shares of Common Stock for each $500,000
borrowed by the Company (the "Warrant Shares") or pro rata for any lesser
amount borrowed hereunder.
1.3 Lender Representations and Warranties. The Lender acknowledges,
represents and warrants to, and agrees with the Company as follows:
(a) The Lender is not a member of the National Association of
Securities Dealers, Inc. (the "NASD"), has not, for a period of 12 months
prior to the date of this Subscription Agreement, been affiliated or
associated with any company, firm, or other entity which is a member of the
NASD, and does not own stock or other interest in, and is not a creditor of,
any member of the NASD (other than interests acquired in open market
purchases);
(b) The Lender is an "accredited investor" as defined in Section
2(15) of the Securities Act of 1933 (the "Securities Act") and in Rule
501(a)(8) promulgated thereunder;
(c) The Company has advised it that (i) the Note has not been
registered under the Securities Act, nor pursuant to the securities laws of
certain states, in reliance on specific exemptions from registration
thereunder, and (ii) no securities administrator of any state or the Federal
government has recommended or endorsed the sale of the Note or made any
findings or determination relating to the fairness of an investment in the
Company;
(d) The Lender is authorized and qualified to become an investor
in the Company and the person signing this Loan Agreement on behalf of the
Lender has been duly authorized to do so;
(e) The Lender has been duly organized, is validly existing and
in good standing under the laws of the state of its incorporation and is duly
qualified as a foreign corporation for the transaction of business and is in
good standing in each jurisdiction in which its ownership or leasing of
properties or the conduct of its business requires such qualification and
where the failure to be so qualified would have a material and adverse affect
on its business. The Lender has all requisite power and authority necessary
to own or hold its properties and conduct its business;
(f) The Lender has the full right, power and authority to enter
into this Agreement and to enter into the Offering Documents (as defined in
Section 1.4(m)) and to perform all of its obligations hereunder and
thereunder. The Offering Documents are duly authorized, executed and
delivered by the Lender. The execution and delivery of this Agreement and the
other Offering Documents have been duly authorized by all necessary corporate
action and no further action or approval is or will be required for its
execution, delivery and performance. This Agreement and the other Offering
Documents constitute valid and binding obligations of the Lender, enforceable
in accordance with their respective terms (except (i) as the enforceability
thereof may be limited by bankruptcy or other laws now or hereafter in effect
relating to or affecting creditors' rights generally, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceedings therefore may be brought, and (iii) that the enforceability of
the indemnification and contribution provisions of the respective agreements
may be limited by federal and state securities laws and public policy), and,
except as set forth on Schedule 1.3(f), no consent, approval, authorization,
order of, or filing with, any court or governmental authority or any other
third party is required to consummate the transactions contemplated by this
Agreement or the other Offering Documents, and except that the offer and sale
of the Note in certain jurisdictions may be subject to the provisions of the
securities or Blue Sky laws of such jurisdictions. Additionally, except as
set forth on Schedule 1.3(f), no consents, approvals, authorizations, orders
of, filing with any court or governmental authority or any other third party
is required to consummate the transactions contemplated by this Agreement and
the other Offering Documents; and
(g) The Lender's execution and delivery of this Agreement and
the other Offering Documents and the incurrence of the obligations herein and
therein set forth, and the consummation of the transactions contemplated
herein and therein will not (i) conflict with, or constitute a breach of, or a
default under, the Certificate of Incorporation or By-Laws of the Lender, or
any contract, lease or other agreement to which the Lender is a party or in
which the Lender has a beneficial interest or by which the Lender is bound;
(ii) violate any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Lender or any of its properties or business, except
where such violation(s) would not have a material adverse effect, singly or in
the aggregate, on the Lender; or (iii) have any material adverse effect on any
permit, certification, registration, approval, consent, license or franchise
necessary for the Lender to own or lease and operate any of its properties and
to conduct its business or the ability of the Lender to make use thereof.
(h) All documents and other information requested by Lender from
the Company or its representatives concerning the Note, Common Stock, the
Warrants, the Company, the assets, liabilities, business condition (financial
or otherwise) and prospects of the Company has been furnished to Lender;
(i) Lender acknowledges that the Company and its business, legal
and accounting advisors and consultants have not provided any business, legal,
investment or tax advice to the Lender and no statement by any of such persons
or entities should be construed as such;
(j) Lender acknowledges that no oral or written statement or
inducement which is contrary to the information described above has been made
by or on behalf of the Company to it;
(k) Lender has had the opportunity to ask questions of and
receive answers from, and to obtain additional information from, the Company
or its representatives necessary to verify the accuracy of the information
furnished by or obtained from the Company or otherwise concerning the assets,
liabilities, business condition (financial or otherwise) and prospects of the
Company;
(l) Lender has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
Loan to the Company;
(m) Lender is making the Loan to the Company with its own funds
and for its own account and not on behalf of any other person;
(n) Lender is making the Loan to the Company for investment only
and not with a view to the sale, transfer or other distribution of all or any
part thereof;
In the event that (and at such time as) the Loan hereafter is
converted into Common Stock pursuant to Section 1 of the Note, Lender further
represents and warrants to and agrees with the Company as follows:
(o) Lender has reviewed copies of (i) the Offering Memorandum
dated May 21, 1999 (the "Private Placement Memorandum") in connection with the
Company's recently completed offering of securities (common stock) pursuant to
Rule 504 promulgated under Regulation D of the Securities Act including the
"Risk Factors" contained therein, and (ii) financial statements described on
Schedule 1.4(h)(2) of which Lender acknowledges it has received, read and
understood;
(p) Lender is financially capable of bearing the economic risk
of the conversion of the Loan into Common Stock for an indefinite period of
time and can afford the loss of the total amount of such investment; and
(q) The conversion of the Loan into Common Stock is a
speculative investment involving a high degree of risk, including but not
limited to those risks described in the Risk Factors contained in the Private
Placement Memorandum.
1.4 Company Representations and Warranties. The Company acknowledges,
warrants and, represents to and agrees with the Lender as follows:
(a) The sale of the Note has been duly authorized by the Company;
(b) The shares of Common Stock into which the Note may be
converted (the "Conversion Shares") have been duly authorized by the Company;
(c) When executed and delivered in accordance with the terms
hereof the Note will be a valid and binding obligation of the Company;
(d) The shares of Common Stock into which the Note may be
converted when issued and/or delivered in accordance with the conversion terms
of the Note, will be duly and validly issued, fully paid and nonassessable
shares of Common Stock;
(e) The Company has been duly incorporated, is validly existing
and is in good standing under the laws of its state of incorporation and is
duly qualified as a foreign corporation for the transaction of business and is
in good standing in each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification and
where the failure to be so qualified would have a material and adverse affect
on its business. The Company has all requisite corporate power and authority
necessary to own or hold its properties and conduct its business;
(f) The Company is authorized to issue 20,000,000 shares of
Common Stock, and 0 shares of Preferred Stock, of which 13,635,939 shares of
Common Stock are currently issued and outstanding. Except as set forth on
Schedule 1.4(f), all of the issued and outstanding shares of Common Stock have
been duly and validly authorized and issued and are fully paid and non-
assessable. Except as set forth on Schedule 1.4(f), the offers and sales of
such outstanding shares of Common Stock were at all relevant times either
registered under the Securities Act and the applicable state securities laws,
or are exempt from such registration;
(g) Except as set forth on Schedule 1.4(g), there are no
preemptive or other rights to subscribe for or purchase, or any restriction
upon the voting or transfer of, any shares of Common Stock or other securities
of the Company, under the Certificate of Incorporation or By-Laws of the
Company or under any agreement or other outstanding instrument or order to
which the Company is a party or by which the Company is bound. Except as set
forth on Schedule 1.4(g) attached hereto, the Company does not have
outstanding any option, warrant, convertible security, or other right
permitting or requiring it to issue, or otherwise to purchase or convert any
obligation into, shares of Common Stock or other securities of the Company,
and the Company has not agreed to issue or sell any shares of Common Stock or
other securities of the Company. Except as set forth on Schedule 1.4(g), no
holder of any of the Company's securities has any rights to have such
securities registered or to demand the filing of a registration statement
pursuant to the Securities Act. The Company has reserved for issuance a
sufficient number of Warrant Shares;
(h) The financial statements of the Company described on
Schedule 1.4(h)(1) and heretofore delivered to the Lender fairly present the
respective financial positions and results of operations of the Company at the
dates thereof and for the periods covered thereby, subject to year-end
adjustments and normal recurring accruals. The Company has no material
liabilities or obligations, contingent, direct, indirect or otherwise except
(i) as set forth in the latest balance sheet included in the financials or
those incurred in the ordinary course of business since the date of the
financials or (ii) as set forth on Schedule 1.4(h)(2). There is also set
forth on Schedule 1.4(h)(2) all outstanding amounts due to affiliates or any
employees, officers or directors of the Company as of the date hereof,
including, but not limited to, accrued salaries, loans, etc. not set forth in
the latest balance sheet, included in the financials or incurred in the
ordinary course of business since the date of the financials;
(i) Except as set forth on Schedule 1.4(i), there has not been
any change in the condition, financial or otherwise, of the Company which
could materially adversely affect its ability to conduct its operations, and
the Company has not incurred any material liabilities or obligations, direct
or contingent within the past twelve months;
(j) Except as set forth on Schedule 1.4(j), the Company has
filed all federal tax returns and all state and municipal and local tax
returns (whether relating to income, sales, franchise, withholding, real or
personal property or other types of taxes) required to be filed under the laws
of the United States and applicable states, and has paid in full all taxes
which have become due pursuant to such returns or claimed to be due by any
taxing authority or otherwise due and owing; provided, however, that the
Company has not paid any tax, assessment, charge, levy or license fee that it
is contesting in good faith and by proper proceedings and adequate reserves
for the accrual of same are maintained if required by generally accepted
accounting principles. Each of the tax returns heretofore filed by the
Company correctly and accurately reflects the amount of its tax liability
thereunder. Except as set forth on Schedule 1.4(j), the Company has withheld,
collected and paid all levies, assessments, license fees and taxes to the
extent required;
(k) Except as set forth on Schedule 1.4(k), the Company is not
obligated to pay a finder's fee to anyone in connection with the introduction
of the Company to the Lender;
(l) Except as set forth in Schedule 1.4(l), there are no
actions, suits, proceedings, claims or hearings of any kind or nature pending
or threatened, or any investigations or inquiries before or by any court,
government authority, tribunal or instrumentality or, to the knowledge of the
Company, any state of facts which would give rise thereto, pending or, to the
knowledge of the Company, threatened against the Company or involving the
properties of the Company which could reasonably be expected to result in any
material adverse change in the business, properties, financial position or
results of operations of the Company or which could reasonably be expected to
adversely affect the transactions or other acts contemplated by this Agreement
or the validity or enforceability of this Agreement;
(m) This Loan Agreement, the Note and the Warrants (the
"Offering Documents") do not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Note and shares of Common Stock conform to the descriptions
thereof contained in this Loan Agreement;
(n) The Company has full right, power and authority to enter
into this Agreement and to enter into the Offering Documents and to perform
all of its obligations hereunder and thereunder. The Offering Documents are
duly authorized, executed and delivered by the Company. The execution and
delivery of this Agreement and the other Offering Documents have been duly
authorized by all necessary corporate action and no further corporate action
or approval is or will be required for its execution, delivery and
performance. This Agreement and the other Offering Documents constitute valid
and binding obligations of the Company, enforceable in accordance with their
respective terms (except (i) as the enforceability thereof may be limited by
bankruptcy or other laws now or hereafter in effect relating to or affecting
creditors' rights generally, (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought, and (iii) that the enforceability of the
indemnification and contribution provisions of the respective agreements may
be limited by federal and state securities laws and public policy), and,
except as set forth on Schedule 1.4(n), no consent, approval, authorization,
order of, or filing with, any court or governmental authority or any other
third party is required to consummate the transactions contemplated by this
Agreement or the other Offering Documents, and except that the offer and sale
of the Note in certain jurisdictions may be subject to the provisions of the
securities or Blue Sky laws of such jurisdictions. Additionally, except as
set forth on Schedule 1.4(n), no consents, approvals, authorizations, orders
of, filings with any court or governmental authority or any other third party
is required to consummate the transactions contemplated by this Agreement and
the other Offering Documents;
(o) The Company's execution and delivery of this Agreement and
the other Offering Documents and the incurrence of the obligations herein and
therein set forth, and the consummation of the transactions contemplated
herein and therein will not: (i) conflict with, or constitute a breach of, or
a default under, the Certificate of Incorporation or By-Laws of the Company,
or any contract, lease or other agreement or instrument to which the Company
is a party or in which the Company has a beneficial interest or by which the
Company is bound; (ii) violate any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court, domestic or
foreign, having jurisdiction over the Company or any of its properties or
business, except where such violation(s) would not have a material adverse
effect, singly or in the aggregate, on the Company; or (iii) have any material
adverse effect on any permit, certification, registration, approval, consent,
license or franchise necessary for the Company to own or lease and operate any
of its properties and to conduct its business or the ability of the Company to
make use thereof;
(p) The Note and the Warrants are duly and validly issued. The
Conversion Shares and the Warrant Shares have been duly and validly
authorized, and when issued and/or delivered in accordance with the terms of
the Note and the Warrants, respectively, and this Agreement, will be duly and
validly issued, fully paid and non-assessable;
(q) The issuance of the Note and Warrants will not give any
holder of any of the Company's outstanding shares of Common Stock, options,
warrants or other convertible securities or rights to purchase shares of the
Company's Common Stock, the right to purchase any additional shares of Common
Stock and/or the right to purchase shares of Common Stock at a reduced price;
(r) Except as set forth on Schedule 1.4(r), the Company: (i) has
not filed a registration statement which is the subject of any pending
proceeding or examination under Section 8 of the Securities Act, and is not
and has not been the subject of any refusal order or stop order thereunder;
(ii) is not subject to any pending proceedings under Rule 258 of the
Securities Act or any similar rule adopted under Section 3(b) of the
Securities Act, or to an order entered thereunder; (iii) has not been
convicted of any felony or misdemeanor in connection with the purchase or sale
of any security or involving the making of any false filing with the
Securities and Exchange Commission (the "Commission"); (iv) is not subject to
any order, judgment, or decree of any court of competent jurisdiction
temporarily or preliminary restraining or enjoining, the Company from engaging
in or continuing any conduct or practice in connection with the purchase or
sale of any security or involving the making of any false filing with the
Commission; and (v) is not subject to a United States Postal Service false
representation order entered under Section 3005 of Title 39, United States
Code, or a temporary restraining order or preliminary injunction entered under
Section 3007 of Title 39, U.S. Code, with respect to conduct alleged to have
violated Section 3005 of Title 39, U.S. Code. None of the Company's
directors, officers, or beneficial owners of 10 percent or more of any class
of its equity securities: (i) has been convicted of any felony or misdemeanor
in connection with the purchase or sale of any security, involving the making
of a false filing with the Commission, or arising out of the conduct of the
business of any underwriter, broker, dealer, municipal securities dealer, or
investment advisor; (ii) is subject to any order, judgment, or decree of any
court of competent jurisdiction temporarily or preliminarily enjoining or
restraining such person from engaging in or continuing any conduct or practice
in connection with the purchase or sale of any security, or involving the
making of a false filing with the Commission, or arising out of the conduct of
the business of an underwriter, broker, dealer, municipal securities dealer,
or investment adviser; (iii) is subject to an order of the Commission entered
pursuant to Section 15(b), 15B(a) or 15B(c) of the Exchange Act, or is subject
to an order of the Commission entered pursuant to Section 203(e) or (f) of the
Investment Advisers Act of 1940; (iv) is suspended or expelled from membership
in, or suspended or barred from association with a member of, an exchange
registered as a national securities exchange pursuant to Section 6 of the
Exchange Act, an association registered as a national securities association
under Section 15A of the Exchange Act, or a Canadian securities exchange or
association for any act or omission to act constituting conduct inconsistent
with just and equitable principles of trade; or (v) is subject to a U.S.
Postal Service false representation order entered under Section 3005 of Title
39, U.S. Code; or is subject to a restraining order or preliminary injunction
entered under Section 3007 of Title 39, U.S. Code, with respect to conduct
alleged to have violated Section 3005 of Title 39, U.S. Code;
(s) The Company is not in default in the performance and
observance of any term, covenant or condition of any license, contract,
indenture, mortgage, deed of trust, note, loan or credit agreement, or any
other agreement or instrument evidencing an obligation for borrowed money, or
any other agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets of the
Company is subject, except defaults which (singly or in the aggregate) would
not have a material adverse effect on the Company. The Company is not in
violation of any term or provision of its Certificate of Incorporation or By-
Laws or in violation of any franchise, license, permit, applicable law, rule
regulation, judgment or decree of any governmental agency or court, domestic
or foreign, having jurisdiction over the Company or any of its properties or
business, except where such violation would not have a material adverse effect
on the Company. The products manufactured and/or distributed by the Company
and the processes used in the production and/or storage of such products do
not violate any applicable state or federal laws, regulations or rules,
including those promulgated by the U.S. Environmental Protection Agency or
applicable state agencies, except where such violation would not have a
material adverse effect on the Company;
(t) The Company has all requisite corporate power and authority,
and has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and
bodies to own or lease its property and conduct its business, and the Company
is and has been doing business in compliance with all such material
authorizations, approvals, orders, licenses, certificates and permits and all
federal, state and local laws, rules and regulations. The Company is in
compliance with all federal, state and local laws, rules and regulations
applicable to the conduct of its business, except where noncompliance would
not have a material adverse effect on the Company;
(u) Except as set forth on Schedule 1.4(u), the Company has good
and marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property (tangible and intangible) owned or leased
by it, free and clear of all liens, encumbrances, claims, security interests,
defects and restrictions of any material nature whatsoever. The Company has
insured its property against loss or damage by fire or other casualty and
maintains insurance in amounts which is customary for companies similarly
situated;
(v) The Company owns or possesses the requisite licenses or
rights to use all trademarks, service marks, service names, trade names,
patents and patent applications, copyrights and other rights (collectively,
"Intangibles") used by it in its business or relating to products sold by it.
Except as set forth on Schedule 1.4(v), the Company has no Intangibles
registered in the United States Patent and Trademark Office. There is no
claim or action by any person pertaining to, or proceeding pending or, to, the
Company's knowledge, threatened and the Company has not received any notice of
conflict with the asserted rights of others which challenges the exclusive
right of the Company with respect to any Intangibles used in the conduct of
its business. The Intangibles and the Company's current products, services
and processes do not infringe on any intangibles held by any third party. To
the best of the Company's knowledge, no others have infringed upon the
Intangibles of the Company;
(w) The Company is not now, nor has it ever been, subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended;
(x) The directors of the Company consist of Christopher J.
Spencer, Armen Geronian and Gordon Berry. Christopher J. Spencer currently
serves as the Company's Chief Executive Officer and President. All of the
background and other information concerning such persons previously furnished
to the Lender is true and accurate in all material respects; and
(y) The Private Placement Memorandum (i) contains all material
statements required to be stated therein in accordance with the Act, (ii)
conforms in all material respects with the requirements of the Act, and (iii)
does not contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
1.5. Cancellation and Replacement of Original Note and Warrant. The
Company and the Lender acknowledge that the note dated May 2, 2000 (the
"Original Note"), and the original Warrant W-1 (the "Original Warrant") shall
be canceled upon the execution and delivery hereof by all signatories hereto
and the execution and delivery of the Amended and Restated Convertible
Promissory Note. The Note and the replacement Warrant W-1 shall supersede and
replace the Original Note and the Original Warrant in their entirety. The
Lender agrees to return the executed Original Note and Original Warrant to the
Company promptly upon the Company's execution and delivery of the Note and the
replacement Warrant W-1.
2. Indemnification. The Company hereby agrees to indemnify and hold
harmless the Lender, its officers, directors, shareholders, employees, agents,
and attorneys against any and all losses, claims, demands, liabilities, and
expenses (including reasonable legal or other expenses) incurred by each such
person in connection with defending or investigating any such claims or
liabilities, whether or nor resulting in any liability to such person, to
which any such indemnified party may become subject under the Securities Act,
under any other statute, at common law or otherwise, insofar as such losses,
claims, demands, liabilities and expenses (a) arise out of or are based upon
any untrue statement of a material fact made by the Company and contained in
this Loan Agreement, or (b) arise out of or are based upon any breach of any
of the Company's representations, warranties, or agreements contained herein.
The Lender hereby agrees to indemnify and hold harmless the
Company, its officers, directors, shareholders, employees, agents, and
attorneys against any and all losses, claims, demands, liabilities, and
expenses (including reasonable legal or other expenses) incurred by each such
person in connection with defending or investigating any such claims or
liabilities, whether or nor resulting in any liability to such person, to
which any such indemnified party may become subject under the Securities Act,
under any other statute, at common law or otherwise, insofar as such losses,
claims, demands, liabilities and expenses (a) arise out of or are based upon
any untrue statement of a material fact made by the Lender and contained in
this Loan Agreement, or (b) arise out of or are based upon any breach of any
of the Lender's representations, warranties, or agreements contained herein.
3. Severability. In the event that any part or parts of this Loan
Agreement are found to be void, the remaining provisions of this Subscription
Agreement shall nevertheless be binding with the same effect as though the
void part or parts were deleted.
4. Counterparts. This Loan Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Loan Agreement may be by actual or facsimile signature.
5. Benefit. This Loan Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
This Loan Agreement may not be sold, assigned, pledged, transferred or
otherwise disposed of in any manner by either party without the prior written
consent of the other.
6. Notices and Addresses. All notices, offers, acceptance and any
other acts under this Loan Agreement (except payment) shall be in writing, and
shall be sufficiently given if delivered to the addressees in person, by
Federal Express, or similar receipted delivery, by facsimile delivery
(followed by an original signed copy sent by regular mail) or, if mailed,
postage prepaid, by certified mail, return receipt requested, as follows:
To Lender:
Savage Holdings, Inc.
2000 S. Plymouth Road
Suite 210
Minnetonka, MN 55305
Phone: (612) 545-7962
Fax: (612) 512-9958
To the Company: Wizzard Software Corporation
424 Gold Way
Pittsburgh, PA 15213
Phone: (412) 621-0902
Fax: (412) 621-2625
In either case
with copies to: Robson Ferber Frost Chan & Essner, LLP
530 Fifth Avenue
New York, New York 10036
Attn: David I. Ferber, Esq.
Phone: (212) 944-2200
Fax: (212) 944-7630
and
Nischwitz, Pembridge & Chriszt Co., L.P.A.
Cort Shoe Building, 4th Floor
1265 W. 6th Street
Cleveland, Ohio 44113
Attn: D. Timothy Pembridge, Esq.
Phone: (216) 861-8100
Fax: (216) 861-8180
or to such other address as any of them, by notice to the others may designate
from time to time. Time shall be counted to, or from, as the case may be, the
actual delivery in person or actual receipt.
7. Governing Law; Interpretation. This Loan Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware, excluding that body of law relating to conflict of laws. All
references to dollars are to U.S. dollars.
8. Venue. The Company (a) agrees that any legal suit, action or
proceeding arising out of or relating to this Loan Agreement shall be
instituted exclusively in Delaware Chancery Court or in the federal court
located in the State of Delaware, (b) waives any objection to the venue of any
such suit, action or proceeding and the right to assert that such forum is not
a convenient forum, and (c) irrevocably consents to the jurisdiction of the
Delaware Chancery Court and the federal court located in the State of Delaware
in any such suit, action or proceeding. The Company further agrees to accept
and acknowledge service of any and all process which may be served in any such
suit, action or proceeding in the Delaware Chancery Court or in the federal
court located in the State of Delaware and agrees that service of process upon
it mailed by certified mail to its address shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding.
9. Oral Evidence. This Loan Agreement constitutes the entire
agreement between the parties and supersedes all prior oral and written
agreements between the parties hereto with respect to the subject matter
hereof. In particular, the parties acknowledge that the Loan Agreement
between them dated May 2, 2000 (the "Original Loan Agreement"), shall be
terminated upon the execution and delivery hereof by all signatories hereto
and that this Amended and Restated Loan Agreement shall supersede the Original
Loan Agreement in its entirety. Neither this Loan Agreement nor any provision
hereof may be changed, waived, discharged, or terminated orally, except by a
statement in writing signed by the party or parties against which enforcement
or the change, waiver, discharge, or termination is sought.
10. Section Headings. Section headings herein have been inserted for
reference only and shall not be deemed to limit or otherwise affect, in any
manner, or be deemed to interpret in whole or in part any of the terms or
provisions of this Loan Agreement.
11. Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements contained herein shall survive the
delivery of the Note until the
earlier to occur of (i) the payment of all amounts due under the Note in U.S.
Funds, or (ii) two (2) years after the Conversion Date (as defined in the
Note).
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date first above written.
SAVAGE HOLDINGS, INC.
By:/s/Mark Savage
Name: Mark Savage
Title: President
WIZZARD SOFTWARE CORPORATION
By:/s/Chris Spencer
Name: Chris Spencer
Title: President
Exhibit A
WIZZARD SOFTWARE CORPORATION
AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE
THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW, OR QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS
AMENDED. NEITHER THIS NOTE NOR THE SECURITIES ISSUABLE UPON THE CONVERSION
HEREOF MAY BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE SAME ARE
REGISTERED AND QUALIFIED IN ACCORDANCE WITH SAID ACTS AND ANY APPLICABLE STATE
SECURITIES LAW, OR IT IS ESTABLISHED TO THE SATISFACTION OF COUNSEL TO MAKER
THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
$1,000,000 February 2, 2001
FOR VALUE RECEIVED, Wizzard Software Corporation, a Delaware
corporation (the "Company"), with its principal office at 424 Gold Way,
Pittsburgh, PA 15213 promises to pay to Savage Holdings, Inc. (the "Holder")
with its principal office at 2000 S. Plymouth Road, Suite 220, Minnetonka, MN
55305, or registered assigns, on August 10, 2001 the principal amount of One
Million ($1,000,000) Dollars, or such lesser amount as may be advanced to or
for the benefit of the Company in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public or private debts ("U.S. Funds"), together with simple interest on the
outstanding principal amount at the rate of twelve and one-half (12.5%)
percent per annum. Payments of principal and interest are to be made at the
address of the Holder designated above or at such other place as the Holder
shall have notified the Company in writing at least (5) days before such
payment is due.
The Company may request advances subject to the terms and
conditions of this Note. All advances may only be made in the amount of
$500,000 unless otherwise evidenced by advances in any lesser amount. In no
event shall the aggregate unpaid principal amount of advances under this Note
exceed the face amount of this Note.
This Note is issued pursuant to an Amended and Restated Loan
Agreement dated February 2, 2001 between the Company and the Holder (the "Loan
Agreement"). Reference herein to the Loan Agreement shall in no way impair
the absolute and unconditional obligation of the Company to pay both principal
and interest hereon as provided herein.
1. Conversion.
1.1 Manner of Conversion. The Note may be converted in whole or
in part, into fully paid and nonassessable shares of Common Stock, $.001 par
value, of the Company (the "Common Stock"), upon the terms set forth in this
Section 1. The number of shares of Common Stock into which this Note may be
converted shall be determined pursuant to Section 1.3 hereof. If the Company
elects to convert part of the Note into Common Stock pursuant to this Section
1, then the Company shall pay as of the Conversion Date (as defined herein)
the principal and interest portion of the Note which is not converted thereby.
1.2 Conversion Procedure.
(a) Notice of Conversion. The Company shall be entitled
to convert this Note into shares of Common Stock by delivering a duly executed
notice of conversion in the form annexed hereto as Exhibit A (the "Notice of
Conversion") by notice to the Holder as set forth in Section 8.2 hereof. The
Notice of Conversion shall state that the Company has elected to convert the
Note pursuant to Section 1.1, and shall specify the portion of the principal
amount thereof to be converted and the interest thereon (the "Conversion
Amount"). Such conversion shall be deemed to have been made on the date that
the Notice of Conversion is delivered to the Holder (the "Conversion Date").
(b) Surrender of Note. The Company at its expense shall
deliver the Notice of Conversion with certificate or certificates for the
appropriate number of shares of the Company's Common Stock to the Holder, at
the principal office of the Holder, in exchange for the Note. If the Company
has elected to partially convert the Note, the Company shall also deliver with
the Notice of Conversion and the certificate(s), payment in U.S. Funds of such
principal amount and interest due thereon not converted pursuant to the Notice
of Conversion. The person or persons entitled to receive shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of any such shares of Common Stock immediately prior
to the close of business on the Conversion Date.
(c) Mechanics and Effect of Conversion. No fractional
shares of Common Stock shall be issued upon conversion of this Note. Upon
conversion of this Note and delivery of the Common Stock and any U.S. Funds
payable hereunder, the Company shall be forever released from all of its
obligations and liabilities under this Note.
(d) Timing of Conversion. All or a portion of the unpaid
principal and interest due under this Note may be converted into shares of
Common Stock upon and after the closing (the "Closing") of any merger,
consolidation, or reorganization of the Company or a public or private
offering of the common stock of Wizzard Software Corporation (f/k/a Balanced
Living, Inc.), a Colorado corporation ("WSC") which generates gross proceeds
in excess of $500,000.
(e) Exchange. Notwithstanding the foregoing, in the event
of a conversion of this Note pursuant to this Section 1.2 in connection with a
private offering of common stock of WSC, this Note shall be converted into
shares of WSC rather than shares of Common Stock of the Company.
1.3 Conversion Price. The conversion price (the "Conversion
Price") shall be equal to the value attributed to the shares of Common Stock
or the shares of common stock of WSC, as the case may be, in the Closing
described in Section 1.2(d). In the event that more than one value is
attributed to the shares of Common Stock or the common stock of WSC, as the
case may be, in the Closing, the Conversion Price shall be the highest of such
values.
1.4 Reserved Common Stock. All shares of Common Stock reserved
for issuance upon conversion of this Note upon issuance shall be validly
issued, fully paid and nonassessable and shall be subject to the same or
similar transfer and other restrictions as are then applicable to those shares
of Common Stock held by any officer or director of the Company or any holder
of more than 5% of the issued and outstanding shares of Common Stock. Shares
of Common Stock issued in accordance herewith will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold, transferred or otherwise disposed of unless a registration statement
under the Securities Act with respect to such securities has become effective,
or unless the Holder establishes to the satisfaction of counsel to the Company
that an exemption from such registration is available.
1.5 Conversion Price Adjustments.
(a) Adjustment for Stock Splits and Subdivisions. In the
event that the Company should at any time or from time to time after the date
of issuance hereof fix a record date for the effectuation of a split or
subdivision of the outstanding shares of Common Stock or the determination of
holders of Common Stock entitled to receive a dividend or a distribution
payable in additional shares of Common Stock or other securities or rights
convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such
holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the Conversion Price of this Note shall be appropriately decreased so that the
number of shares of Common Stock issuable upon conversion of this Note shall
be increased in proportion to such increase of outstanding shares.
(b) Adjustment for Reverse Stock Splits. If the number of
shares of Common Stock outstanding at any time after the date hereof is
decreased by a combination or reverse-split of the outstanding shares of
Common Stock, then following the record date of such combination, the
Conversion Price for this Note shall be appropriately increased so that the
number of shares of Common Stock issuable on conversion hereof shall be
decreased in proportion to such decrease in outstanding shares.
2. Advances. The Company shall make a request for an advance by
notice to the Holder given pursuant to Section 8.2 hereof. The Holder will
enter on its books and records, the date and amount of each advance, as well
as the date and amount of each payment made by the Company. Such entries will
be presumed to be correct when made.
3. Use of Proceeds. The Company agrees that the proceeds of this
Note shall be used for general working capital purposes (including, if so
determined by the Company, the repurchase of shares of Common Stock in
connection with the exercise of a rescission right by any stockholder entered
into prior to the date of this Note) but shall not be used to pay any
indebtedness for borrowed money or to pay any Related Party Indebtedness (as
hereinafter defined). "Related Party Indebtedness" shall mean all of the
Company's obligations or indebtedness (including principal and any interest
thereon) for borrowed funds or for unpaid salaries, fees or other compensation
owed to any of its officers, directors, stockholders or their affiliates, for
whatever purpose made and whether or not evidenced by a note, bond, debenture
or other formal instrument, excluding, for the purposes hereof, any salaries
or fees payable on a current basis or accrued during the 1999 fiscal year to
officers and directors in the ordinary course of the Company's business and
any amounts paid to stockholders in connection with the exercise of statutory
and/or contractual rescission rights entered into prior to the date of this
Note.
4. Events of Default. Upon the occurrence of any of the following
events (herein called "Events of Default"):
(a) The Company shall fail to pay the principal of or
interest on this Note when due;
(b) (i) The Company shall commence any proceeding or
other action relating to it in bankruptcy or seek reorganization, arrangement,
readjustment of its debts, receivership, dissolution, liquidation, winding-up,
composition or any other relief under any bankruptcy law, or under any other
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or any other similar act or law, of any
jurisdiction, domestic or foreign, now or hereafter existing; (ii) the Company
shall admit the material allegations of any petition or pleading in connection
with any such proceeding; (iii) the Company shall apply for, or consent to or
acquiesce in, the appointment of a receiver, conservator, trustee or similar
officer for it or for all or a substantial part of its property; or (iv) the
Company shall make a general assignment for the benefit of creditors;
(c) (i) The commencement of any proceedings or the taking
of any other action against the Company in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts, liquidation,
dissolution, arrangement, composition, or any other relief under any
bankruptcy law or any other similar act or law of any jurisdiction, domestic
or foreign, now or hereafter existing and the continuance of any of such
events for forty-five (45) days undismissed, unbonded or undischarged; (ii)
the appointment of a receiver, conservator, trustee or similar officer for the
Company or for any of its property and the continuance of any of such events
for forty-five (45) days undismissed, unbonded or undischarged; or (iii) the
issuance of a warrant of attachment, execution or similar process against any
of the property of the Company and the continuance of such event for forty-
five (45) days undismissed, unbonded and undischarged;
(d) Any foreign or domestic governmental agency or any
foreign or domestic court of competent jurisdiction at the instance of any
governmental agency shall assume custody or control of the whole or any
substantial portion of the properties or assets of the Company which shall not
be dismissed within thirty (30) days thereafter;
(e) Any breach of any of the Company's representations or
warranties contained in this Note or the Loan Agreement which is not cured by
the Company within twenty (20) days after it receives written notice from the
Holder of the occurrence of such breach or failure, which notice describes
such breach or failure with reasonable particularity;
(f) The Company shall fail to perform any of its
obligations contained in the Loan Agreement, after giving effect to any
applicable notice provisions and cure periods which is not cured by the
Company within twenty (20) days after it receives written notice from the
Holder of the occurrence of such breach or failure, which notice describes
such breach or failure with reasonable particularity;
(g) The Company shall fail to perform, observe or comply
with any covenant, term, provision, condition, agreement or obligation under
this Note which is not cured by the Company within twenty (20) days after it
receives written notice from the Holder of the occurrence of such breach or
failure, which notice describes such breach or failure with reasonable
particularity;
(h) The Company shall default with respect to any
indebtedness for borrowed money (other than under this Note) if either (i) the
effect of such default is to accelerate the maturity of such indebtedness
(giving effect to any applicable grace periods) or (ii) the holder of such
indebtedness declares the Company to be in default (giving effect to any
applicable grace periods); or
(i) Any judgments against the Company and/or any
attachment, levy or execution against any of its properties for an amount in
excess of $25,000 in the aggregate shall remain unpaid, or shall not be
released, discharged, dismissed, stayed or fully bonded for a period of thirty
(30) days or more after its entry, issue or levy, as the case may be;
then, and in any such event, the Holder may, at its option and without written
notice to the Company, declare the entire principal amount of this Note and
all interest accrued thereon to the date of payment then outstanding
immediately due and payable, and the same shall forthwith become immediately
due and payable without presentment, demand, protest, or other notice of any
kind, all of which are expressly waived. The Events of Default listed herein
are solely for the purpose of protecting the interests of the Holder of this
Note. If the Note is not paid in full upon acceleration, as required above,
interest shall accrue on the outstanding principal balance of and interest on
this Note from the date of the Event of Default up to and including the date
of payment at a rate equal to the greater of eighteen (18%) percent per annum
or the maximum interest rate permitted by applicable law.
4.1 Non-Waiver and Other Remedies. No course of dealing or
delay on the part of the Holder of this Note in exercising any right hereunder
shall operate as a waiver or otherwise prejudice the right of the Holder of
this Note. No remedy conferred hereby shall be exclusive of any other remedy
referred to herein or now or hereafter available at law, in equity, by statute
or otherwise.
4.2 Attorneys' Fees. Upon the occurrence of an Event of
Default, the Company will be responsible to pay all reasonable costs of
counsel retained by the Holder in seeking advice in connection with the
exercise or enforcement of its rights, and all legal fees and expenses
reasonably incurred in seeking collection hereof and all other out of pocket
expenses incurred by the Holder in connection with such matter, which amounts
may, at the Holder's option, be added to the principal hereof.
5. Obligation to Pay Principal and Interest; Covenants.
5.1 Obligation. No provision of this Note shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the place, at the respective times
(subject to all applicable notice requirements and cure periods), at the rates
and in the currency herein prescribed.
5.2 Affirmative Covenants. The Company covenants and agrees
that, while this Note is outstanding, it shall:
(a) Pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income and profits,
or upon any properties belonging to it before the same shall be in default;
provided, however, that the Company shall not be required to pay any such tax,
assessment, charge or levy which is being contested in good faith by proper
proceedings and adequate reserves for the accrual of same are maintained if
required by generally accepted accounting principles;
(b) Preserve its corporate existence and continue to
engage in business of the same general type as conducted as of the date
hereof, and not sell, assign or otherwise transfer any of its assets except in
the ordinary course of business (except, however, a transaction described in
Section 1.2(d) shall not violate this Section 5.2(b)); and
(c) Comply in all respects with all statutes, laws,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations and requirements of all governmental bodies,
departments, agencies, commissions or boards having jurisdiction, all
companies or associates insuring the premises, and all appropriate courts,
authorities, officials, or officers, which are applicable to the Company or
its properties ("Requirements"), except wherein the failure to comply would
not have a material adverse effect on the Company or its property; provided
that nothing contained herein shall prevent the Company from contesting in
good faith the validity or the application of any Requirements.
5.3 Negative Covenants. The Company covenants and agrees that
while this Note is outstanding it will not directly or indirectly:
(a) Guaranty or otherwise in any way become or be
responsible for indebtedness for borrowed money or for obligations of any of
its officers, directors or principal stockholders or any of its affiliates,
other than such guaranties existing as of the date hereof;
(b) Declare or pay dividends in cash, property or shares
of Common Stock;
(c) Sell, assign, transfer or dispose of any of its assets
other than in the ordinary course of its business and for fair value;
(d) Purchase, redeem, retire or otherwise acquire for value
any of its capital stock now or hereafter outstanding except in connection
with the exercise of any rescission rights by any stockholder pursuant to
agreement existing as of the date hereof; or
(e) Repay any Related Party Indebtedness other than in
accordance with Section 3 above.
5.4 Prepayment. All or a portion of the unpaid principal and
interest due under this Note may be prepaid by the Company without premium or
penalty upon the earlier of (i) August 10, 2000, or (ii) the closing described
in Section 1.2(d) by delivering payment in U.S. Funds of such amount being
prepaid
6. Required Consent. The Company may not modify any of the terms of
this Note without the prior written consent of the Holder.
7. Lost Documents. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Note
or any Note exchanged for it or of any certificate or certificates for shares
of Common Stock issued upon conversion as herein provided and (in the case of
loss, theft or destruction) of indemnity satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of such Note, or cause to be made and
delivered in lieu of such certificate, as the case may be, if mutilated, the
Company will make and deliver in lieu of such Note, or certificate, as the
case may be, a new Note, of like tenor and unpaid principal amount and dated
as of the original date of the Note or, in the case of a certificate, a new
certificate representing fully paid and nonassessable shares of Common Stock.
8. Miscellaneous.
8.1 Benefit. This Note shall be binding upon the Company and
its legal representatives, successors and assigns. This Note shall inure to
the benefit of Holder and its legal representatives, successors and assigns.
Any assignment by Holder may be made only with the prior written consent of
the Company and any assignment made without such consent shall be void.
8.2 Notices and Addresses. All notices (other than the Notice
of Conversion, which is provided in Section 1.2(a)), offers, acceptances and
any other acts under this Note (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressee in person, by Federal
Express or similar receipted delivery, by facsimile delivery (followed by an
original signed copy sent by regular mail) or, if mailed, postage prepaid, by
certified mail, return receipt requested, and shall be deemed given when first
received, as follows:
To Holder: To Holder's address on page 1 of this Note
To the Company: Wizzard Software Corporation
424 Gold Way
Pittsburgh, PA 15213
Phone: (412) 621-0902
Fax: (412) 621-2625
In either case Robson Ferber Frost Chan & Essner, LLP
with copies to: 530 Fifth Avenue
New York, New York 10036
Attn: David I. Ferber, Esq.
Phone: (212) 944-2200
Fax: (212) 944-7630
and
Nischwitz, Pembridge & Chriszt Co., L.P.A.
Cort Shoe Building, 4th Floor
1265 W. 6th Street
Cleveland, Ohio 44113
Attn: D. Timothy Pembridge, Esq.
Phone: (216) 861-8100
Fax: (216) 861-8180
or to such other address as any of them, by notice to the others may designate
from time to time.
8.3 Governing Law; Interpretation. This Note shall be governed
by and construed in accordance with the laws of the State of Delaware
excluding that body of law relating to conflict of laws. All references to
dollars are to U.S. Dollars.
8.4 Venue. The Company (a) agrees that any legal suit, action
or proceeding arising out of or relating to this Note shall be instituted
exclusively in the Chancery Court of Delaware or the federal court located in
the State of Delaware, (b) waives any objection to the venue of any such suit,
action or proceeding and the right to assert that such forum is not a
convenient forum, and (c) irrevocably consents to the jurisdiction of the
Delaware Chancery Court and the federal court located in the State of Delaware
in any such suit, action or proceeding. The Company further agrees to accept
and acknowledge service of any and all process which may be served in any such
suit, action or proceeding in the Delaware Chancery Court or the federal court
located in the State of Delaware and agrees that service of process upon it
mailed by certified mail to its address shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding.
8.5 Section Headings. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any manner, or be deemed to interpret in whole or in part any of
the terms or provisions of this Note.
8.6 Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements contained herein shall survive the
delivery of this Note until this Note has been satisfied in full.
IN WITNESS WHEREOF, this Note has been executed and delivered on
the date specified above by the duly authorized representative of the Company.
WIZZARD SOFTWARE CORPORATION
By:/s/Chris Spencer
Name: Chris Spencer
Title: President
Exhibit A
NOTICE OF CONVERSION
Savage Holdings, Inc.
2000 S. Plymouth Road
Suite 220
Minnetonka, MN 55305
Attn: Mark S. Savage
Dated _______________
In accordance with the provisions set forth in Section 1 of the Amended
and Restated Convertible Promissory Note dated February 2, 2001 (the "Note")
made by Wizzard Software Corporation, the undersigned hereby elects to
convert, as of the date hereof, $______________ of principal (and interest
accrued thereon) in U.S. Funds of the Note into _____________ shares of common
stock of WSC. Any capitalized term not defined herein shall have the meaning
ascribed to such term in the Note.
WIZZARD SOFTWARE CORPORATION
By:__________________________________
Name:
Title: