Wizzard Software Corporation
2004 Stock Option Plan
1. Purpose. The purpose of the Wizzard Software Corporation 2004
Stock Option Plan is to induce certain designated persons to continue to
provide valuable services to Wizzard Software Corporation (the "Company") and
to encourage such person to secure or increase on reasonable terms their stock
ownership in the Company. The Board of Directors of the Company believes the
Plan is in the best interest of the Company and will promote the success of
the Company. This success will be achieved by encouraging continuity of
management and increased incentive and personal interest in the welfare of the
Company by those who are primarily responsible for shaping and implementing
the long-range plans of the Company.
Certain Options granted under this Plan are intended to be Incentive
Stock Options qualified under Section 422 of the Code. The Plan also permits
the grant of Nonqualified Stock Options.
2. Definitions. For purposes of this Plan, the following terms shall
have the meanings indicated below:
(a) "Capital Stock" or "Common Stock": any of the Company's
authorized but unissued shares of common stock.
(b) "Code": the Internal Revenue Code of 1986, as amended from
time to time.
(c) "Fair Market Value": the price per share determined by the
Board of Directors at the time any Option is granted. Fair Market Value of
Incentive Stock Options shall be determined consistent with the Code and
regulations.
(d) "Incentive Stock Option": an option defined in Section 422 of
the Code to purchase shares of the Common Stock of the Company.
(e) "Non-Qualified Stock Option": an option, not intended to
qualify as an Incentive Stock Option as defined in Section 422 of the Code, to
purchase Common Stock of the Company.
(f) "Option": the term shall refer to a Stock Option granted
under this Plan.
(g) "Option Agreement": a written agreement pursuant to which the
Company grants an Option to an Optionee and sets the terms and conditions of
the Option.
(h) "Option Date": the date upon which an Option Agreement for an
option granted pursuant to this Plan is duly executed by or on behalf of the
Company.
(i) "Option Stock": the Common Stock of the Company (subject to
adjustment as described in Section 7) reserved for options pursuant to this
Plan, or any other class of stock of the Company which may be substituted
therefore by exchange, stock split or otherwise.
(j) "Optionee": a person who is eligible to receive an Option
under Section 5 of the Plan and to whom an Option has been granted under the
Plan.
(k) "Plan": this Wizzard Software Corporation 2004 Stock Option
Plan effective August 21, 2004, and as amended hereafter from time to time.
(l) A "Subsidiary": any corporation in an unbroken chain of
corporations beginning with the Company, if, at the time of granting the
option, each of the corporations other than the last corporation in the chain
owns stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
The term shall include any subsidiaries which become such after adoption of
this Plan.
3. Options Available Under Plan. An aggregate of 200,000 shares of the
Company's authorized but unissued shares of Common Stock are hereby made
available for grant, and shall be reserved for issuance, under this Plan. The
aggregate number of shares available under this Plan shall be subject to
adjustment on the occurrence of any of the events and in the manner set forth
in Section 7. If an Option shall expire or terminate for any reason without
having been exercised in full, the unpurchased shares, shall (unless the Plan
shall have been terminated) become available for other Options under the Plan.
4. Administration. The Plan shall be administered by the Board of
Directors of the Company. At all times subject to the authority of the Board
of Directors, the Board of Directors may from time to time delegate some or
all of its authority under the Plan to a committee consisting of three (3) or
more Directors (the "Committee"), and/or obtain assistance or recommendations
from such Committee. If no separate committee is appointed, the Board shall
constitute the Committee, and references to the Committee shall include the
entire Board of Directors.
The Company shall grant Options pursuant to the Plan upon determinations
of the Committee as to which of the eligible persons shall be granted Options,
the number of shares to be Optioned and the term during which any such Options
may be exercised. At all times, a majority of the members of the Committee
making determinations about the grant of Options to employee-directors or
employee-officers must be disinterested in the grant being made. The
Committee may from time to time adopt rules and procedures for carrying out
the Plan and interpretations and constructions of any provision of the Plan,
which shall be final and conclusive.
5. Eligibility for Stock Options. Incentive Stock Options under the
Plan may only be granted to such employees of the Company or any Subsidiary
thereof, as selected by the Committee. Non-Qualified Stock Options may be
granted to key employees, non-employee directors and any other persons
providing valuable services to the Corporation.
In selecting the employees or other persons to whom Stock Options shall
be granted, as well as determining the number of shares subject to each
Option, the Committee shall take into consideration such factors as it deems
relevant in connection with accomplishing the purpose of the Plan. For any
calendar year, the aggregate Fair Market Value (determined at the Option Date)
of the stock with respect to which any Incentive Stock Options are exercisable
for the first time by any individual employee (under all Incentive Stock
Option plans of the Company and all subsidiary corporations) shall not exceed
$100,000. Subject to the provisions of Section 3, an optionee who has been
granted an Option may, if he or she is otherwise eligible, be granted an
additional Option or Options if the Committee shall so determine. Any
Incentive Stock Option that becomes exercisable and exceeds the above
limitation shall be treated as a Non-Qualified Option.
No Stock Option may be granted under this Plan later than the expiration
of ten (10) years from the Effective Date.
6. Terms and Conditions of Options. Whenever the Committee shall
designate an Optionee, it shall communicate to the Secretary of the Company
the name of the Optionee, the number of shares to be Optioned and such other
terms and conditions as it shall determine, not inconsistent with the
provisions of this Plan. The President or other officer of the Company shall
then enter into an Option Agreement with the Optionee, complying with and
subject to the following terms and conditions and setting forth such other
terms and conditions of the Option as determined by the Committee:
(a) Number of shares and option price. The Option Agreement shall
state the total number of shares to which it pertains. The price of Incentive
Stock Option Stock shall be not less than one hundred percent (100%) of the
Fair Market Value of the Option Stock at the Option Date. In the event an
Incentive Stock Option is granted to an employee, who, at the Option Date,
owns more than ten percent (10%) of the voting power of all classes of the
Company's stock then outstanding, the price of the shares of Option Stock
which will be covered by such Option shall be not less than one hundred ten
percent (110%) of the Fair Market Value of the Option Stock at the Option
Date. Non-Qualified Options may be granted at a price equal to, greater than
or less than Fair Market Value at the date of grant. The Option price shall
be subject to adjustment as provided in Section 7 hereof.
(b) Period of options and right to exercise. Options granted under
this Plan shall be subject to such terms and conditions, shall be exercisable
at such times and shall be evidenced by such form of written Option Agreement
as the Committee shall determine, provided that such determinations are not
inconsistent with Code Section 422 and the regulations thereunder. The Option
Agreement may, at the discretion of the Committee, provide for the
acceleration of vesting of Options upon a "Change in Control" of the Company,
as defined in Section 6(h) below.
In addition, no Option granted, shall by its terms, be exercisable after
the expiration of ten (10) years from the date such Option is granted.
Except, however, Incentive Stock Options granted to any employee who at the
Option Date owns more than ten percent (10%) of the voting power of all shares
of the classes of Company's stock then outstanding, may not be exercisable
after expiration of five (5) years from the Option Date. The period during
which the Option may be exercised, once it is granted, shall not be reduced,
except as provided in paragraphs (c), (d) and (e) below. The exercise of any
Option will be contingent upon receipt by the Company of payment as provided
in paragraph (f) below for the full purchase price of such shares. No
Optionee or his or her legal representatives, legatees or distributees, as the
case may be, will be, or will be deemed to be, a holder of any shares subject
to an Option unless and until certificates for such shares are issued under
the terms of the Plan.
(c) Termination of Employment or Service. Unless the Option
Agreement otherwise provides, in the event that an Optionee shall cease to be
employed by (or performing services for, in the event of a Non-Qualified Stock
Option) the Company for any reason other than death, subject to the condition
that no Incentive Stock Option shall be exercisable after the expiration of
ten (10) years from the date it is granted, such Optionee shall have the right
to exercise any outstanding Options at any time within three (3) months after
the termination of employment (or service in the case of a Non-Qualified Stock
Option). Notwithstanding the foregoing, in the case of a disabled employee or
other Optionee, the Board of Directors at its discretion may permit exercise
of Options within one year of termination of employment). In the event an
Optionee shall cease to be employed, or in the case of an independent
consultant, shall cease to provide services to the Company, for "cause," any
outstanding Options in favor of such Optionee shall immediately terminate and
such Optionee shall have no right to exercise any such Options. For purposes
of this Plan, the terms "disability "and "cause" shall have the meanings
ascribed such terms in the employment or independent consulting agreements
between the Company and any such Optionees.
(d) Death of Optionee. If the Optionee holding a "Qualified Stock
Options" shall die (i) while in the employ of or while providing services to
the Company or any Subsidiary, or (ii) within a period of three (3) months
after the termination of his or her employment with the Company or any
subsidiary as provided in paragraph (c) of this section, and in either case
shall not have fully exercised his or her Options, any Options granted
pursuant to the Plan shall be exercisable until the earlier of the originally
stated date of termination or one year from the date of death. Such Option
shall be exercised pursuant to subparagraph (f) of this Section by the person
or persons to whom the Optionee's rights under the Option shall pass by the
Optionee's will or by the laws of descent and distribution, and only to the
extent that such Options were exercisable at the time of his or her death.
(e) Transfer of Option. Each Option granted hereunder shall, by
its terms, not be transferable by the Optionee other than by will or by the
laws of descent and distribution, and shall be, during the Optionee's
lifetime, exercisable only by the Optionee. Except as permitted by the
preceding sentence, each Option granted under the Plan and the rights and
privileges thereby conferred shall not be transferred, assigned or pledged in
any way (whether by operation of law or otherwise), and shall not be subject
to execution, attachment or similar process. Upon any attempt to so transfer,
assign, pledge, or otherwise dispose of the Option, or of any right or
privilege conferred thereby, contrary to the provisions of the Option or the
Plan, or upon levy of any attachment or similar process upon such rights and
privileges, the Option, and such rights and privileges, shall immediately
become null and void.
(f) Manner of Exercise of Options. An Option may be exercised, in
whole or in part, at such time or times and with respect to such number of
shares, as the Board of Directors, in its sole discretion, shall determine at
the time that the Option is granted. The Option terms shall be set forth in
the Option Agreement granting the Option. Such Option shall be exercisable
only within the Option period and only by (i) written notice to the Company of
intent to exercise the Option with respect to a specified number of shares of
stock; (ii) tendering the original Option Agreement to the Company; and (iii)
payment to the Company of the amount of the Option purchase price for the
number of shares of stock with respect to which the Option is then exercised.
Payment of the Option purchase price may be made in cash, by cashier's check
(by personal check at the discretion of the Company) or by a "cashless
exercise" procedure established between the Company and a stock brokerage
firm, subject to compliance with applicable securities laws. When shares of
stock are issued to the Optionee pursuant to the exercise of an Option, the
fact of such issuance shall be noted on the Option Agreement by the Company
before the Agreement is returned to the Optionee. When all shares of Optioned
stock covered by the Option Agreement have been issued to the Optionee, or the
Option shall expire, the Option Agreement shall be canceled and retained by
the Company.
(g) Delivery of Certificate. As promptly as practicable after
receipt of the written notice and payment specified above, the Company shall
deliver to the Optionee certificates for the number of shares with respect to
which the Option has been exercised, issued in the Optionee's name; provided,
however, that such delivery shall be deemed effected for all purposes when the
Company, or the stock transfer agent for the Company, shall have deposited
such certificates in the United States mail, postage prepaid, addressed to the
Optionee at the address specified in the written notice of exercise.
(h) Change in Control. A "Change in Control" shall, unless the
Board otherwise directs by resolution adopted prior thereto, be deemed to
occur if (i) any "person" (as that term is used in Sections 13 and 14(d)(2) of
the Securities Exchange Act of 1934 as amended ("Exchange Act")) is or becomes
the beneficial owner (as that term is used in Section 13(d) of the Exchange
Act), directly or indirectly, of 50% or more of the voting Capital Stock of
the Company ("Voting Stock") or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless the
election or the nomination for election by the Company's shareholders of each
new director was approved by a vote of at least three-quarters of the
directors then still in office who were directors at the beginning of the
period. Any merger, consolidation or corporate reorganization in which the
owners of the Company's capital stock entitled to vote in the election of
directors prior to said combination, own 50% or more of the resulting entity's
Voting Stock shall not, by itself, be considered a change in control for the
purposes of this Plan.
(i) Other Provisions. The Option Agreements authorized under this
Section shall contain such other provisions as the Committee shall deem
advisable.
7. Adjustment of Number of Shares. If, and to the extent that, the
number of issued shares of the Capital Stock of the Company shall be increased
or reduced by change in par value, recapitalization, reorganization, merger,
consolidation, split up, distribution of a dividend payable in stock or the
like, the number of shares subject to the Option and the Option price
therefore shall be equitably adjusted by the Committee consistent with such
change to prevent substantial dilution or enlargement of the rights granted to
or available to Optionees.
Subject to the foregoing, the grant of an Option pursuant to the Plan
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations, or changes of its capital or
business structure or to merge or to consolidate or to dissolve, liquidate or
sell, or transfer all or any part of its business or assets.
8. No Rights as Stockholder. An Optionee shall not, by reason of any
Option granted hereunder, have any right of a stockholder of the Company with
respect to the shares covered by his or her Option until such shares shall
have been issued to the Optionee.
9. No Obligation to Exercise Option. The granting of an Option shall
impose no obligation upon the Optionee to exercise such Option. Neither shall
the Plan confer upon the Optionee any rights respecting continued employment
nor limit the Optionee's rights or the employer Company's rights to terminate
such employment.
10. Withholding Taxes. If required by law, upon a disqualified
disposition of an Incentive Stock Option, the Company shall have the right to
require any Optionee that is or was an employee as of the Option Date, to
remit to the Company an amount sufficient to satisfy any federal and state
withholding or other employment taxes, if any, resulting from such option
exercise or early disposition of Option Stock. Payment of such amount may be
made in the same manner as payment of the exercise price or by tendering
previously owned shares of the Company's Common Stock with a Fair Market Value
on the date of exercise equal to such amount, subject to compliance with
applicable securities laws.
11. Common Stock Acquired for Investment. Common Stock acquired by an
Optionee under this Plan by exercise of any Option shall be acquired by the
Optionee for investment and without intention of resale, unless, in the
opinion of counsel of the Company, such common stock may be purchased without
any investment representation. Where an investment representation is deemed
necessary, the Committee may require a written representation to that effect
by the Optionee as a condition of the Optionee exercising an Option under this
Plan, and the Committee may place an appropriate legend on the common stock
issued to the Optionee indicating that such common stock has not been
registered under federal or state securities laws. Each Option shall be
subject to the requirement that if, at any time, the Committee shall determine
in its discretion that the listing, registration or qualification of the
shares subject to such Option upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of, or in connection with, the
granting of such Option or the issuance or purchase of shares thereunder, then
such Option shall not be granted or exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
Nothing contained herein shall require the Company to register the Options or
the shares of voting common stock purchased upon the exercise of said Options.
12. Effective Date. This Plan shall be effective September 25, 2004
(the "Effective Date") as approved by the Board of Directors, subject to
approval by the shareholders of the Company. However, unless within 12 months
after the Plan is adopted by the Board of Directors, the Plan is approved by
the vote of the holders of a majority of the outstanding Capital Stock of the
Company, the Plan and options granted hereunder shall not qualify under
Section 422 of the Code. All subsequent stock options granted hereunder will
be Non-Qualified Stock Options. All Options granted prior to disqualification
of the Plan for failure to obtain shareholder approval shall be converted to
Non-Qualified Stock Options.
13. Liquidation. Upon the complete liquidation of the Company, any
unexercised Options theretofore granted under this Plan shall be deemed
canceled, except as otherwise provided in Section 7 in connection with a
merger, consolidation or reorganization of the Company.
14. Termination and Amendment of the Plan. This Plan shall terminate ten
(10) years after the Effective Date or at such earlier time as the Board of
Directors shall determine. Any termination shall not affect any Options then
outstanding under the Plan. The Board may make such modifications of the Plan
as it shall deem advisable, but may not, without further approval of the
stockholders of the Company, except as provided in Section 7 hereof, (a)
increase the number of shares reserved for Options under this Plan, (b) change
the manner of determining the Option price for Incentive Stock Options, (c)
increase the maximum term of the Options provided for herein or (d) change the
class of persons eligible to receive Options under the Plan.
15. Governing law. The Plan shall be governed by and construed in
accordance with the internal laws of the State of Colorado without reference
to the principles of conflicts of law thereof.