A waiver agreement is an agreement where either party in a contract agrees to voluntarily forfeit a claim without the other party being liable. A waiver agreement is a demonstration of a party’s intent to relinquish a legal right or claim. It is important that the relinquishment is voluntary.
A waiver agreement removes a real or potential liability for the other party in the agreement. Because the party signing the waiver is surrendering a claim that they are entitled to, they typically only do so if they are receiving some added benefit, such as a financial benefit.
THIS WAIVER AGREEMENT (the “ Agreement”), dated as of June 19, 2009, is entered into by and among Wizzard Software Corporation, a Colorado corporation (the “ Company”), and the persons identified as “Holders” on the signature pages hereto (the “ Holders”).
WHEREAS, on December 2, 2008, the Company closed a Subscription Agreement by which the Holders purchased Secured Notes having an aggregate principal amount of $1 million (the “Notes”);
WHEREAS, Section 2.2 of each of the Notes provides that 75% of the principal amount and all other sums due under and in connection with each Note shall be immediately due and payable out of the net proceeds from the sale and issuance by the Company of debt and/or equity in excess of $200,000 in a single or series of offerings of such debt and/or equity;
WHEREAS, Section 10 of the Subscription Agreement provides that, until the Notes are no longer outstanding, the Holders shall be given not less than 10 business days’ prior written notice of any proposed sale by the Company of its common stock or other securities or equity linked debt obligations, with the Holders to have the right during the five business days following receipt of such notice to purchase for cash or by using the outstanding balance including principal, interest, liquidated damages and any other amount then owing to such Holders by the Company, such offered common stock, debt or other securities in accordance with the terms and conditions set forth in the notice of sale;
WHEREAS, the Company is presently contemplating the offer and sale of up to 10,000,000 shares of its common stock in a registered direct offering off of the Company’s registration statement number 333-158996 (the “Contemplated Transaction”);
WHEREAS, the Contemplated Transaction may trigger the provisions of Section 2.2 of the Note and Section 10 of the Subscription Agreement, absent a waiver of such provisions by the Holders;
NOW THEREFORE, in consideration of the payment by the Company to each of the Holders of the sum of $10, the receipt and sufficiency of which is acknowledged, and the mutual covenants and other agreements contained in this Agreement, the Company and the Holders hereby agree as follows:
Each of the Holders hereby waives its right to prepayment of its Note under Section 2 .2 thereof, with respect to the Contemplated Transaction, provided that all offers and sales thereunder occur on or before October 17, 2009.
Each of the Holders hereby waives both its right to written notice of the Contemplated Transaction under Section 10 of the Subscription Agreement , and its right of first refusal with respect thereto, provided that all offers and sales thereunder occur on or before October 17, 2009; and each of the Holders further waives such rights in favor of Alpha Capital Anstalt’s right to notice and Alpha Capital Anstalt's right of first refusal and option rights under Sections 4.13 and 4.15 of the Securities Purchase Agreement to be executed between Alpha Capital Anstalt and the Company on or about June 19, 2009.
The Company undertakes to make a public announcement on Form 8-K describing this Agreement not later than the fourth business day after the execution of this Agreement .
Subject to the modifications and amendments provided herein , both the Subscription Agreement and the Notes (collectively, the “Transaction Documents”) shall remain in full force and effect. Except as expressly set forth herein, this Agreement shall not be deemed to be a waiver, amendment or modification of any provisions of the Transaction Documents or of any right, power or remedy of the Holders, or constitute a waiver of any provision of the Transaction Documents (except to the extent herein set forth), or any other document, instrument and/or agreement executed or delivered in connection therewith, in each case whether arising before or after the date hereof or as a result of performance hereunder or thereunder. Except as set forth herein, the Holders reserve all rights, remedies, powers, or privileges available under the Transaction Documents, at law or otherwise. This Agreement shall not
constitute a novation or satisfaction and accord of the Transaction Documents or any other document, instrument and/or agreement executed or delivered in connection therewith.
Each of the undersigned states that he has read the foregoing Agreement and understands and agrees to it .
This Agreement may be executed in two or more counterparts , all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to any other party, it being understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were an original thereof.
IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first written above.
WIZZARD SOFTWARE CORPORATION
/s/ Christopher J. Spencer
By: Christopher J. Spencer
ALPHA CAPITAL ANSTALT
/s/ Konrad Ackerman
By: Konrad Ackerman
MILL CITY VENTURES, LP
/s/ Joseph A Geraci II
By: Joseph A. Geraci II
Managing Member of Mill City Advisors, LLC
Its: General Partner
ISLE CAPITAL, LLC
/s/ Joseph A. Geraci II
By: Joseph A. Geraci II
Its: Managing Member
Reference:
Security Exchange Commission - Edgar Database, EX-10 2 waiveragreementfinal.htm WAIVER AGREEMENT, Viewed October 24, 2021, View Source on SEC.
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Brianna is a well-respected New York licensed attorney with a Juris Doctorate degree in law from Touro College Jacob D. Fuchsberg Law School and bachelor’s degree in Business Administration and Management from Dowling College. Since becoming an attorney, she has practiced in various areas including business law, corporate law, residential real estate, commercial real estate, criminal law, traffic law, employment law, landlord tenant law, estate planning, and has represented intermediaries in procurement and the personal protective equipment industry. Brianna has broad and extensive business experience; She is an entrepreneur and co-owner of a microtechnology manufacturing company that was built by her and her partner, where she also served as the Chief Legal Officer and Human Resource Manager for the company. While building the manufacturing business, she created a brokerage firm for business transactions and has managed several other businesses which she has ownership interest in. Brianna’s involvement in these various businesses over the past 15 years provides a unique skillset to her clients; Not only does she understand contractual principals and obligations from a legal perspective while drafting and negotiating agreements, but she also has the foresight, experience, and ability to ensure the agreement reflects the practical aspects of the business. Based on the client’s needs and desired outcome, she has the forethought to cover different angles that would be overlooked from a legal standpoint, and as a result she is able to help prevent unforeseen business ramifications. She conducts extensive risk assessments on behalf of her clients and minimizes exposure to potential liability without “over lawyering” agreements. One of Brianna’s main areas of focus is drafting and negotiating agreements. Negotiation is a passion of hers which was applied in law school while she was a member of the Alternative Dispute Resolution Society, notably winning Touro Law School’s intraschool negotiation competition. In her more recent years, Brianna has removed herself from her various business interests to focus on her law practice. Brianna has a strong moral compass and believes in quality over quantity. She treats every client as a top priority; thus, she will not take on many cases at a time because she wants to give each client the focus and attention they deserve. She has sharp attention to detail and is a forceful advocate for every client. Brianna has broad and extensive business experience; She is an entrepreneur and co-owner of a microtechnology manufacturing company that was built by her and her partner, where she also served as the Chief Legal Officer and Human Resource Manager for the company. While building the manufacturing business, she created a brokerage firm for business transactions and has managed several other businesses which she has ownership interest in. Brianna’s involvement in these various businesses over the past 15 years provides a unique skillset to her clients; Not only does she understand contractual principals and obligations from a legal perspective while drafting and negotiating agreements, but she also has the foresight, experience, and ability to ensure the agreement reflects the practical aspects of the business. Based on the client’s needs and desired outcome, she has the forethought to cover different angles that would be overlooked from a legal standpoint, and as a result she is able to help prevent unforeseen business ramifications. She conducts extensive risk assessments on behalf of her clients and minimizes exposure to potential liability without “over lawyering” agreements. Additionally, she specializes in drafting and negotiating agreements. Negotiation is a passion of hers which was applied in law school while she was a member of the Alternative Dispute Resolution Society, notably winning Touro Law School’s intraschool negotiation competition. In her more recent years, Brianna has removed herself from her various business interests to focus on her law practice. Brianna has a strong moral compass and believes in quality over quantity. She treats every client as a top priority; thus, she will not take on many cases at a time because she wants to give each client the focus and attention they deserve. She has sharp attention to detail and is a forceful advocate for every client.