SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WIZZARD SOFTWARE CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Colorado 87-0575577
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(State or Other Jurisdiction (IRS Employer ID No.)
of incorporation or organization)
424 Gold Way
Pittsburgh, Pennsylvania 15213
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(Address of Principal Executive Offices)
(412) 621-0902
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(Issuer's Telephone Number, including Area Code)
Stock Option Plan
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(Full Title of the Plan)
Christopher J. Spencer
424 Gold Way
Pittsburgh, Pennsylvania 15213
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(Name and Address of Agent for Service)
(412) 621-0902
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(Telephone Number, Including Area Code, of Agent for Service)
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Maximum Maximum Amount of
Securities to Amount to Price per Aggregate Registration
be Registered be Registered Unit/Share Offering Price Fee *
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$0.005 par 1,000,000 $0.50 $500,000 $
value common
voting stock
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* Calculated according to Rule 457(h) and (c) of the Securities and
Exchange Commission, based upon the average of the bid and asked
prices of our common stock on the OTC Bulletin Board on November 20,
2002, to be issued under the Plan.
PART I
Item 1. Plan Information.
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Plan.
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A copy of our ("Wizzard Software Corporation," or the "Company,"
"we," "our" and "us" or words of similar import) Stock Option Plan (the
"Plan") is attached hereto and incorporated herein by reference.
Item 2. Registrant Information and Employee Plans Annual Information.
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Available Information.
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Copies of our Plan, our 10-KSB Annual Report for the year ended
December 31, 2001, all amendments to our 10-KSB Annual Report, all of our
10-QSB Quarterly Reports and any of our Current Reports filed with the
Securities and Exchange Commission (the "Commission") during the past 12
months will be provided to the Plan's participants.
We also undertake to furnish, without charge, to such participants or
persons purchasing any of our securities registered hereby, copies of all of
such documentation. Requests should be directed to Christopher J. Spencer,
our President, at the address and telephone appearing on the Cover Page of
this Registration Statement.
Additional information regarding us may be reviewed at the
Commission's web site www.sec.gov, in the Edgar Archives.
PART II
Information Required in the Registration Statement
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Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated by reference into this
Registration Statement and made a part hereof, to wit:
(a) Our 10-KSB Annual Report for the calendar year ended December
31, 2001, filed with the Commission on or about April 15, 2002;
our 10-KSB/A1 filed with the Commission on or about July 3,
2002; our 10-KSB/A2 filed with the Commission on or about
August 8, 2002; our 10-KSB/A3 filed with the Commission on or
about September 10, 2002; and our 10-KSB/A4 filed with the
Commission on or about September 19, 2002;
(b) All of our other reports filed pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") for the past twelve months;
(c) Not applicable.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
also be deemed to be incorporated by reference into this Registration
Statement and made a part hereof from the date of the filing of such
documents.
Item 4. Description of Securities.
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We are authorized to issue one class of securities, being comprised
of $0.001 par value common voting stock.
The holders of our $0.001 par value common stock of have traditional
rights as to voting, dividends and liquidation. All shares of common stock
are entitled to one vote on all matters; there are no pre-emptive rights and
cumulative voting is not allowed. Our common stock is not subject to
redemption and carries no subscription or conversion rights. In the event of
our liquidation, the holders of our common stock are entitled to share equally
in corporate assets after satisfaction of all liabilities.
Item 5. Interest of Named Experts and Counsel.
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Leonard W. Burningham, Esq., who has prepared this Registration
Statement, the Plan and an Opinion regarding the authorization, issuance and
fully-paid and non-assessable status of our securities covered by this
Registration Statement, presently owns 92,353 shares of our common stock and
is not deemed to be an affiliate of ours or a person associated with an
affiliate of ours. He is also entitled to participate in the Plan.
Item 6. Indemnification of Directors and Executive Officers.
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Section 7-109-102 of the Colorado Code authorizes a Colorado
corporation to indemnify any director against liability incurred in any
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Unless limited by the Articles of Incorporation, Section 7-109-105
authorizes a director to apply for indemnification to the court conducting the
proceeding or another court of competent jurisdiction. Section 7-109-107
extends this right to officers of a corporation as well.
Unless limited by the Articles of Incorporation, Section 7-109-103
requires that a corporation indemnify a director who was wholly successful in
defending any proceeding to which he or she was a party against reasonable
expenses incurred in connection therewith. Unless limited by the Articles of
Incorporation, Section 7-109-107 extends this protection to officers of a
corporation as well.
Pursuant to Section 7-109-104, the corporation may advance a
director's expenses incurred in defending any action or proceeding upon
receipt of an undertaking and a written affirmation of his or her good faith
belief that he or she has met the standard of conduct specified in Section 7-
109-102. Unless limited by the Articles of Incorporation, Section 7-109-107
extends this protection to officers of a corporation as well.
Regardless of whether a director, officer, employee or agent has the
right to indemnity under the Colorado Code, Section 7-109-108 allows the
corporation to purchase and maintain insurance on his or her behalf against
liability resulting from his or her corporate role.
Article VIII of our Company's Bylaws reiterates the provisions of
Section 7-109-102 of the Colorado Code, and extends this protection to
officers and employees of our Company. Article VIII also provides that a
judgment or conviction, whether based upon a plea of guilty or nolo contendere
or its equivalent, or after trial, shall not in and of itself be deemed to be
an adjudication that such director, officer or employee is liable to our
Company for negligence or misconduct in the performance of his or her duties.
This determination can be made, at the option of the director, officer or
employee seeking indemnification in any of the following manners: (a) order of
the court or administrative agency having jurisdiction of the action, suit or
proceeding; (b) resolution of a majority of the non-interested members of the
Board of Directors; (c) if there is no quorum after excluding interested
directors, by majority resolution of a committee of non-interested
stockholders and directors appointed by the Board of Directors; (d) resolution
of a majority of the quorum directors at any meeting; or (e) an order of any
court having jurisdiction over our Company.
Item 7. Exemption from Registration Claimed.
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None.
Item 8. Exhibits.
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Exhibit
Number
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5.1 Opinion regarding Legality
5.2 S-8 Memorandum for Plan Participants
23.1 Consent of Leonard W. Burningham, Esq.
23.2 Consent of Pritchett, Siler & Hardy, P.C.
Certified Public Accountants
23.3 Consent of Murphy & Murphy, CPA, LLC
Certified Public Accountants
99.1 Stock Option Plan
Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any additional or changed material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to
such information in the Registration Statement;
provided, however, only to the extent required
by the general rules and regulations of the
Commission.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) That for purposes of determining any liability under the 1933
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act, as amended, may be permitted to directors,
executive officers and controlling persons of the Registrant as
outlined above or otherwise, the Registrant has been advised
that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, executive officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, executive officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the date or dates appearing opposite the respective signatures
hereto.
REGISTRANT:
Date: 11/19/02 By /s/ Christopher J. Spencer
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Christopher J. Spencer
President and Director
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons (who
constitute all of the members of the Board of Directors of the Registrant) in
the capacities and on the date indicated.
Date: 11/19/02 /s/ Christopher J. Spencer
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Christopher J. Spencer
CEO, President and
Director
Date: 11/19/02 /s/ Armen Geronian
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Armen Geronian
Assistant Secretary
and Director
Date: 11/19/02 /s/ Gordon Berry
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Gordon Berry
Director
Date: 11/19/02 /s/ Alan Costilo
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Alan Costilo
Director
Securities and Exchange Commission File No. 333-69415
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WIZZARD SOFTWARE CORPORATION
EXHIBIT INDEX
Exhibit
Number
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5.1 Opinion regarding Legality
5.2 S-8 Memorandum for Plan Participants
23.1 Consent of Leonard W. Burningham, Esq.
23.2 Consent of Pritchett, Siler & Hardy, P.C.
Certified Public Accountants
23.3 Consent of Murphy & Murphy, CPA, LLC
Certified Public Accountants
99.1 Stock Option Plan