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)
5001 Baum Blvd. Suite 770
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 and Agreement
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(Full Title of the Plan)
Christopher J. Spencer
5001 Baum Blvd. Suite 770
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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$0.001 par 125,000 $1.74 $217,500 $27.56
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 May 22,
2006, to be issued under the Plan.
PART I
Information Required in Section 10(a)Prospectus
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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 and
Agreement(the "2006 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 2006 Plan, our 10-KSB Annual Report for the year ended
December 31, 2005, all amendments to such 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 2006 Plan's participant.
We also undertake to furnish, without charge, to such participant or
person 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, 2005, filed with the Commission on April 3, 2006, and amended on May
26, 2006; our 10-QSB Quarterly Report for the quarter ended March 31, 2006,
filed with the Commission on May 15, 2006; our 10-QSB Quarterly Report for
the quarter ended September 30, 2005, filed with the Commission on November
14, 2005; and our 10-QSB Quarterly Report for the quarter ended June 30,
2005, filed with the Commission on August 15, 2005.
(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.
We are authorized to issue two classes of securities, being comprised
of 100,000,000 shares of $0.001 par value common voting stock and
10,000,000 shares of $0.001 par value preferred stock. No shares of our
preferred stock are currently issued or outstanding.
The holders of our $0.001 par value common stock 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.
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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(c) See Item 3(b) above.
Item 5. Interest of Named Experts and Counsel.
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Branden T. Burningham, Esq., who has prepared an opinion regarding
the authorization, issuance and fully-paid and non-assessable status of our
securities covered by this Registration Statement, presently owns no 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 may be entitled to
participate in the 2006 Plan; however, his participation is not anticipated
at this time.
Item 6. Indemnification of Directors and Executive Officers.
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Section 7-109-102 of the Colorado Corporations and Associations Act,
(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 Participant
23.1 Consent of Branden T. Burningham, Esq.
23.2 Consent of Gregory & Eldredge, LLC,
Certified Public Accountants
99.1 2006 Plan
Item 9. Undertakings.
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The undersigned registrant hereby undertakes to:
(a) (1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in the information in the registration
statement; and not withstanding the forgoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospects filed with the Commission pursuant to Rule
424(b)(230.424(b) of this chapter) if, in the
aggregate, the changes in the volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
registration statement.
(iii) Include any additional or changed material information
on the plan of distribution.
(2) For determining liability under the Securities Act, treat
each such post-effective amendment as a new registration
statement of the securities offered, and the offering of
the securities at that time to be the initial bona fide
offering.
(3) File a post-effective amendment to remove any of the
securities that remain unsold at the end of the offering.
(4) For determining liability of the undersigned small
business issuer under the Securities Act to any purchaser
in the initial distribution of the securities, the
undersigned small business issuer undertakes that in a
primary offering of securities of the undersigned small
business issuer pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned small business issuer will
be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned small business issuer relating to the
offering required to be filed pursuant to Rule 424
(230.424(b) of this chapter);
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned small
business issuer or used or referred to by the
undersigned small business issuer;
(iii) The portion of any other free writing prospectus
relating to the offering containing material
information about the undersigned small business issuer
or its securities provided by or on behalf of the
undersigned small business issuer; and
(iv) Any other communication that is an offer in the
offering made by the undersigned small business issuer
to the purchaser.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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, in the City of Pittsburgh, in the State of
Pennsylvania on May 26, 2006.
REGISTRANT:
Date:05-26-06 By /s/ Christopher J. Spencer
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Christopher J. Spencer
President and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Date:05-26-06 /s/ Christopher J. Spencer
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Christopher J. Spencer
CEO, President and
Director
Date:05-26-06 /s/ Armen Geronian
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Armen Geronian
Assistant Secretary
and Director
Date:05-26-06 /s/ Gordon Berry
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Gordon Berry
Director
Date:05-26-06 /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 Participant
23.1 Consent of Branden T. Burningham, Esq.
23.2 Consent of Gregory & Eldredge, LLC
Certified Public Accountants
99.1 2006 Plan