As filed with the Securities and Exchange Commission on June 1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
AUDIOEYE, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 20-2939845 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
5210 E. Williams Circle, Suite 750 Tucson, Arizona |
85711 |
| (Address of Principal Executive Offices) | (Zip Code) |
AudioEye, Inc. 2020 Equity Incentive Plan
(Full title of the plan)
James Spolar, Esq.
General Counsel and Corporate Secretary
AudioEye, Inc.
5210 E. Williams Circle, Suite 750
Tucson, Arizona 85711
(866) 331-5324
(Name, address and telephone number, including area code, of agent for service)
_____________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | o | Accelerated filer | o |
| Non-accelerated filer | x | Smaller reporting company | x |
| Emerging growth company | o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
This registration statement on Form S-8 relates to the registration of an additional 1,500,000 shares of common stock, $0.00001 par value per share, of AudioEye, Inc. (the “Registrant”), issuable under the AudioEye, Inc. 2020 Equity Incentive Plan (the “Plan”). Pursuant to General Instruction E of Form S-8, the contents of the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on December 9, 2020 (Registration No. 333-251225) is incorporated herein by reference and made a part of this registration statement, except as amended hereby.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates by reference in this registration statement the following documents that the Registrant has filed with the Commission:
| 1. | The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed on March 11, 2022; |
| 2. | The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the Commission on May 13, 2022; |
| 3. | The portions of the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on April 8, 2022, that are incorporated by reference into the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021; |
| 4. | The Registrant’s Current Reports on Form 8-K filed on January 20, 2022, March 11, 2022, April 8, 2022, April 15, 2022, and May 24, 2022 (other than information contained in a Current Report on Form 8-K that is “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)); and |
| 5. | The description of the Registrant’s common stock contained in its Registration Statement on Form S-1 filed on September 30, 2016 and as subsequently amended (File No. 333-213916), which description is incorporated by reference into the Form 8-A filed on September 4, 2018, and any amendment or report filed for the purpose of further updating such description. |
All documents that the Registrant files with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing of this registration statement but prior to the filing of a post-effective amendment which (i) indicates that all of the shares of the Registrant’s common stock covered by this registration statement have been sold, or which (ii) deregisters all of the shares then remaining unsold, shall be deemed to be incorporated by reference in and to be part of this registration statement from the respective dates of filing.
Any statement in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded to the extent that a statement in this registration statement, or in any document filed after the filing of this registration statement which is deemed to be incorporated by reference in this registration statement, modifies or supersedes the earlier statement. The earlier statement shall be deemed to be incorporated in this registration statement only as so modified or superseded.
Item 6. Indemnification of Directors and Officers.
The Registrant’s bylaws provide that, to the fullest extent permitted by the Delaware General Corporation Law as the same exists or may hereafter be amended, the Registrant’s directors shall not be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. In addition, the Registrant’s bylaws provide that the Registrant may, to the fullest extent permitted by law, indemnify any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person is or was a director, officer or employee of the Registrant, or any predecessor of the Registrant, or serves or served at any other enterprise as a director, officer or employee at the request of the Registrant.
The Registrant’s bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent not prohibited by the Delaware General Corporation Law or any other law. The Registrant is not required to indemnify any director or officer in connection with a proceeding brought by such director or officer unless (i) such indemnification is expressly required by law; (ii) the proceeding was authorized by the Registrant’s board of directors; or (iii) such indemnification is provided by the Registrant, in its sole discretion, pursuant to the powers vested in the Registrant under the Delaware General Corporation Law or any other applicable law. In addition, the Registrant’s bylaws provide that the Registrant may indemnify its employees and other agents as set forth in the Delaware General Corporation Law or any other applicable law.
The Registrant has also entered into separate indemnification agreements with its directors and officers that require the Registrant, among other things, to indemnify to the fullest extent permitted by the laws of the State of Delaware and subject to certain exceptions. The Registrant is not required to indemnify under the agreement for (i) actions initiated by the director without the authorization of consent of the board of directors; (ii) actions initiated to enforce the indemnification agreement unless the director is successful; (iii) actions resulting from violations of Section 16 of the Exchange Act in which a final judgment has been rendered against the director; (iv) actions for any reimbursement of any bonus or other incentive-based or equity-based compensation or of any profits realized from the sale of securities of the Registrant, as required in each case under the Exchange Act or applicable law; (v) actions for prohibited amounts pursuant to Section 410(a) of ERISA; and (vi) actions to enforce any non-compete or non-disclosure provisions of any agreement.
The indemnification provided for above provides for reimbursement of all losses of the indemnified party, including expenses, judgment, fines and amounts paid in settlement. The right to indemnification set forth above includes the right for the Registrant to pay the expenses (including attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition in certain circumstances.
The Delaware General Corporation Law provides that indemnification is permissible only when the director, officer, employee, or agent acted in good faith and in a manner 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 the conduct was unlawful. The Delaware General Corporation Law also precludes indemnification in respect of any claim, issue, or matter as to which an officer, director, employee, or agent shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine that, despite such adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court deems proper.
The Registrant maintains insurance policies that provide coverage to its directors, officers, employees or agents against certain liabilities.
Item 8. Exhibits.
| Exhibit No. | Description |
| (1) | Incorporated by reference to Exhibit 3.1 to the Registrant’s Form S-1, filed with the U.S. Securities and Exchange Commission (the “SEC”) on October 21, 2011. |
| (2) | Incorporated by reference to Exhibit 3.2 to the Registrant’s Form S-1, filed with the SEC on October 21, 2011. |
| (3) | Incorporated by reference to Exhibit 3.3 to the Registrant’s Form S-1/A, filed with the SEC on October 1, 2012. |
| (4) | Incorporated by reference to Exhibit 3.4 to the Registrant’s Form 10-K, filed with the SEC on March 31, 2014. |
| (5) | Incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K, filed with the SEC on August 7, 2018. |
| (6) | Incorporated by reference to Exhibit 3.6 to the Registrant’s Form 10-K, filed with the SEC on March 30, 2020. |
| (7) | Incorporated by reference to Exhibit 4.2 to the Registrant’s Form 8-K, filed with the SEC on June 25, 2021. |
| (8) | Incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K/A, filed with the SEC on September 24, 2020. |
| (9) | Incorporated by reference to Exhibit 10.1 to the Registrant’s Form 8-K filed with the SEC on May 24, 2022. |
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 Tucson, State of Arizona, on June 1, 2022.
| AUDIOEYE, INC. | ||
| By: | /s/ David Moradi | |
| David Moradi | ||
| Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David Moradi, the undersigned’s true lawful attorney-in-fact, as agent with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacity, to sign any and all amendments to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title | Date | ||
| /s/ Dr. Carr Bettis | Executive Chairman, Director | |||
| Dr. Carr Bettis | June 1, 2022 | |||
| /s/ David Moradi | ||||
| David Moradi |
Chief Executive Officer (Principal Executive Officer) and Director |
June 1, 2022 | ||
| /s/ Kelly Georgevich | ||||
| Kelly Georgevich |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
June 1, 2022 | ||
| /s/ Anthony Coelho | Director | |||
| Anthony Coelho | June 1, 2022 | |||
| /s/ Jamil Tahir | Director | |||
| Jamil Tahir | June 1, 2022 | |||
| /s/ Marc Lehmann | Director | |||
| Marc Lehmann | June 1, 2022 |
Exhibit 5.1
Faegre Drinker Biddle & Reath LLP
600 East 96th Street, Suite 600
Indianapolis, Indiana 46240
+1
317 569 9600 main
+1 317 569 4800 fax
June 1, 2022
AudioEye, Inc.
5210 E. Williams Circle, Suite 750
Tucson, Arizona 85711
Ladies and Gentlemen:
We have acted as counsel to AudioEye, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), registering the offer and sale of up to 1,500,000 additional shares of the Company’s common stock, par value $0.00001 per share (the “Shares”), pursuant to the AudioEye, Inc. 2020 Equity Incentive Plan (the “Plan”).
For purposes of this opinion letter, we have examined the Plan, the Registration Statement, the Company’s Certificate of Incorporation of the Company, as amended through the date hereof, the Company’s Amended and Restated Bylaws, as currently in effect, and the resolutions of the Company’s board of directors authorizing the issuance of the Shares. We have also examined a certificate of the Secretary of the Company dated the date hereof (the “Certificate”) and originals, or copies certified or otherwise authenticated to our satisfaction, of such corporate and other records, agreements, instruments, certificates of public officials and documents as we have deemed necessary as a basis for the opinions hereinafter expressed and have made such examination of law as we have deemed relevant and necessary in connection with the opinions hereinafter expressed. As to facts material to this opinion letter, we have relied upon certificates, statements or representations of public officials, of officers and representatives of the Company (including the Certificate) and of others, without any independent verification thereof.
In our examination, we have assumed: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures, including electronic signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the agreements, documents, instruments, certificates and records we have reviewed; and (vii) the absence of any undisclosed modifications to the agreements and instruments reviewed by us.
Based upon such examination and review, and subject to the foregoing and the other qualifications, assumptions and limitations set forth herein, we are of the opinion that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares to be issued in accordance with the Plan and that, when (a) the Shares have been issued and sold as contemplated in the Registration Statement and related prospectus and in accordance with the Plan and any applicable award agreement, and (b) where applicable, the consideration for the Shares specified in the Plan and any applicable award agreement has been received by the Company, the Shares will be validly issued, fully paid and nonassessable.
We do not express any opinion herein with respect to the laws of any jurisdiction other than, subject to the limitations and assumptions contained herein, the General Corporation Law of the State of Delaware.
This opinion speaks only as of the date the Registration Statement becomes effective under the Act, and we assume no obligation to revise or supplement this opinion thereafter. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | ||
| Faegre Drinker Biddle & Reath LLP | ||
| By: | /s/ Christine G. Long | |
| Christine G. Long, Partner | ||
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the AudioEye, Inc. 2020 Equity Incentive Plan of our report dated March 11, 2022 with respect to the audited consolidated financial statements of AudioEye, Inc. for the years ended December 31, 2021 and 2020, included in AudioEye, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
| /s/ MaloneBailey, LLP | |
| www.malonebailey.com | |
| Houston, Texas | |
| June 1, 2022 |
Exhibit 107
Calculation of Filing Fee Table
FORM S-8
(Form Type)
AUDIOEYE, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
|
Security Type |
Security Class Title |
Fee Calculation Rule |
Amount Registered (1) |
Proposed Maximum Offering Price Per Unit (2) |
Maximum Aggregate Offering Price (2) |
Fee Rate |
Amount of Registration Fee |
| Equity |
Common Stock $0.00001 par value per share |
457(c) and (h) | 1,500,000 | $3.295 | $4,942,500 | 0.0000927 | $458.17 |
| Total Offering Amounts | $4,942,500 | $458.17 | |||||
| Total Fee Offsets | -- | ||||||
| Net Fee Due | $458.17 | ||||||
| (1) | The aggregate number of shares to be registered is subject to adjustment by reason of stock splits, stock dividends and other events pursuant to the anti-dilution provisions of the AudioEye, Inc. 2020 Equity Incentive Plan. Accordingly, pursuant to Rule 416, this registration statement covers, in addition to the number of shares of common stock shown in the table above, an indeterminate number of shares of common stock that may become issuable by reason of such provisions. |
| (2) | Computed pursuant to Rule 457(c), in accordance with Rule 457(h)(1), on the basis of the average of the high and low reported sales price on May 26, 2022 of a share of common stock on The Nasdaq Capital Market. |