Exhibit 10.1
CONFIDENTIAL
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase
Agreement (this “Agreement”) is made and entered into as of this ___ day
of ____________, 2023, by and among OptimizeRx Corporation, a Nevada corporation (the “Company”),
and the individuals listed on Exhibit A hereto (the “Purchasers”).
Background
A.
The Company is a party to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 11,
2023, by and among the Company and the other parties named therein;
B. Pursuant to the Merger Agreement, each of the Purchasers is entitled to receive certain consideration as payment for securities; and
C. Each of the Purchasers has, in connection with the Merger Agreement, agreed to use a portion of the consideration received pursuant to
the Merger Agreement to purchase shares of the Company’s common stock, $0.001 par value per share (“Common Stock”),
as further set forth herein.
In consideration of the mutual
promises and covenants contained in this Agreement, the parties hereto agree as follows:
1. Sale
of Shares. Subject to the terms and conditions of this Agreement, at the Closing the Company will sell and issue to each of the Purchasers,
and each of the Purchasers will purchase, the number of shares of Common Stock set forth opposite such Purchaser’s name on Exhibit
A for the purchase price per share equal to $7.223. The shares of Common Stock being
sold under this Agreement are collectively referred to as the “Shares.” The Company’s agreement with each of
the Purchasers is a separate agreement, and the sale of Shares to each of the Purchasers is a separate sale.
2. The
Closing. The closing (“Closing”) of the sale and purchase of the Shares under this Agreement shall take place concurrently
with the execution of this Agreement. At the Closing, the Company will deliver to each of the Purchasers the number of Shares being purchased
by such Purchaser solely in book entry form, registered in the name of such Purchaser, against payment to the Company of the purchase
price therefor. For the avoidance of doubt, the parties hereto acknowledge and agree that, in the interest of efficiency, rather than
paying to each Purchaser the full amount of the consideration to which such Purchaser was entitled under the Merger Agreement, the Company
retained a portion of such consideration in an amount equal to such Purchaser’s aggregate purchase price for the Shares and that,
by permitting the Company to retain such amount (and the Company so retaining such amount), such Purchaser’s obligation to pay the
purchase price for the Shares has been fully satisfied.
3. Representations
of the Company. The Company hereby represents and warrants to each of the Purchasers as follows:
3.1 Organization.
The Company is a corporation duly organized, existing, and in good standing under the laws of the State of Nevada and it has the corporate
power and authority to own or lease its properties and to conduct its business as it is now being conducted and to enter into and perform
this Agreement and to carry out the transactions contemplated by this Agreement. The Company is duly qualified and is in good standing
(or equivalent status) in each jurisdiction in which the property leased or operated by such party or the nature of the business conducted
by such party makes such qualification necessary.
3.2 Capitalization.
The authorized capital stock of the Company consists of 166,666,667 shares of Common Stock and 10,000,000
shares of undesignated preferred stock, par value $0.001 per share.
3.3 Issuance
of Shares. The issuance, sale, and delivery of the Shares in accordance with this Agreement, have been duly authorized by all necessary
corporate action on the part of the Company. The Shares when so issued, sold and delivered against payment therefor in accordance with
the provisions of this Agreement will be duly and validly issued, fully paid, and nonassessable.
3.4 Authority
for Agreement. The execution, delivery, and performance by the Company of this Agreement, and the consummation by the Company of the
transactions contemplated hereby, have been duly authorized by all necessary corporate action. This Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding obligation of the Company enforceable in accordance with its terms.
3.5 Noncontravention.
Neither the execution and the delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement, will
(a) violate any provision of its organizational documents or (b) constitute a default under, or result in a breach or violation of any
of the terms and provisions of, any contract or agreement of the Company, except in the case of (b) as would not, individually or in the
aggregate, be reasonably expected to materially adversely affect the condition (financial or otherwise), prospects, earnings, business
or properties of the Company.
3.6 SEC
Filings. The Company has timely filed with or furnished to, as applicable, the Securities and Exchange Commission (the “SEC”)
all reports, schedules, forms, statements, and other documents (including exhibits and all other information incorporated by reference)
required to be filed or furnished by it with the SEC since January 1, 2020 (the “Company SEC Documents”). True, correct,
and complete copies of all the Company SEC Documents are publicly available on the Electronic Data Gathering, Analysis, and Retrieval
database of the SEC. As of their respective filing dates or, if amended or superseded by a subsequent filing prior to the date hereof,
as of the date of the last such amendment or superseding filing (and, in the case of registration statements and proxy statements, on
the dates of effectiveness and the dates of the relevant meetings, respectively), each of the Company SEC Documents complied as to form
in all material respects with the applicable requirements of the Securities Act of 1933, the Securities Exchange Act of 1934, and the
rules and regulations of the SEC thereunder applicable to such Company SEC Documents. None of the Company SEC Documents, including any
financial statements, schedules, or exhibits included or incorporated by reference therein at the time they were filed (or, if amended
or superseded by a subsequent filing prior to the date hereof, as of the date of the last such amendment or superseding filing), contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading. To the knowledge of the Company, none
of the Company SEC Documents is the subject of ongoing SEC review or outstanding SEC investigation and there are no outstanding or unresolved
comments received from the SEC with respect to any of the Company SEC Documents.
4. Representations
of the Purchasers. Each of the Purchasers severally represent and warrant to the Company as follows:
4.1 Investment.
Such Purchaser is acquiring the Shares for such Purchaser’s own account for investment and not with a view to, or for sale in connection
with, any distribution thereof, nor with any present intention of distributing or selling the same; and such Purchaser has no present
or contemplated agreement, undertaking, arrangement, obligation, indebtedness, or commitment providing for the disposition thereof. Such
Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act of
1933, as amended (the “Securities Act”) or any applicable state securities law. Such Purchaser is not purchasing the
Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general
solicitation or general advertisement.
4.2 Authority.
Such Purchaser has full power and authority to enter into and to perform this Agreement in accordance with its terms.
4.3 Experience.
Such Purchaser has carefully reviewed the representations concerning the Company contained in this Agreement, and has made detailed inquiry
concerning the Company, its business, and its personnel; the officers of the Company have made available to such Purchaser any and all
written information that such Purchaser has requested and have answered, to such Purchaser’s satisfaction, all inquiries made by
such Purchaser; and such Purchaser has adequate net worth and means of providing for such Purchaser’s current needs and personal
contingencies to sustain a complete loss of such Purchaser’s investment in the Company; such Purchaser’s overall commitment
to investments that are not readily marketable is not disproportionate to such Purchaser’s net worth and such Purchaser’s
investment in the Shares will not cause such overall commitment to become excessive.
4.4 Accredited
Investor. Such Purchaser represents that he, she or it is an accredited investor within the meaning of Regulation D under the Securities
Act. Such Purchaser acknowledges that he, she or it has completed the Investor Questionnaire, in substantially the form attached hereto
as Exhibit B, and that the information contained therein is complete and accurate as of the date thereof and is hereby affirmed
as of the date hereof. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification
Event”) is applicable to (i) such Purchaser or (ii) any of such Purchaser’s Rule 506(d) Related Parties (as defined below).
Such Purchaser hereby agrees that such Purchaser shall notify the Company promptly in writing in the event a Disqualification Event becomes
applicable to such Purchaser or any of such Purchaser’s Rule 506(d) Related Parties. “Rule 506(d) Related Party” shall
mean (a) a person or entity that controls such Purchaser, or (b) a person or entity that, directly or indirectly, has or shares, or is
deemed to have or share, voting or dispositive power with respect to securities owned by such Purchaser.
4.5 Residency.
Such Purchaser is a resident of the state set forth on Exhibit A hereto and is not acquiring the shares of the Company’s
Common Stock as a nominee or agent or otherwise for any other person.
4.6 Acknowledgment.
Such Purchaser understands the meaning and legal consequences of the representations and warranties in this Section 4 and acknowledges
and agrees that the Company is relying upon such representations and warranties in determining to issue the shares of the Company’s
Common Stock to such Purchaser and in establishing that such issuance and sale is exempt from the registration requirements of the Securities
Act.
4.7 Restrictions
on Transfer. Such Purchaser understands that the shares of Common Stock being issued hereunder are “restricted securities”
under applicable federal securities laws and that the Securities Act and the rules of the U.S. Securities and Exchange Commission provide
in substance that such Purchaser may dispose of such share of Common Stock only pursuant to an effective registration statement under
the Securities Act or an exemption therefrom, and such Purchaser understands that the Company has no obligation or intention to register
any of the Shares, or to take action so as to permit sales pursuant to the Securities Act. Such Purchaser understands that the Company
is not required to register the Shares or to make any exemption from registration available.
5. Indemnification.
To the fullest extent permitted by Delaware law, as the same now exists or may hereafter be amended, substituted, or replaced, the Company
shall indemnify, hold harmless, defend, pay, and reimburse each of the Purchasers from and against any and all losses, claims, damages,
judgments, fines, or liabilities, including reasonable legal fees or other expenses incurred in investigating or defending against such
losses, claims, damages, judgments, fines, or liabilities, and any amounts expended in settlement of any claims to which each of the Purchasers
may become subject by reason of any failure of the Company to perform any covenant or agreement made or contained herein or fulfill any
obligation in respect thereof.
6. Confidentiality.
Each Purchaser agrees that he, she or it will keep confidential and will not disclose or divulge any confidential, proprietary, or secret
information that such Purchaser may obtain from the Company pursuant to financial statements, reports, and other materials submitted by
the Company to such Purchaser pursuant to this Agreement, or pursuant to visitation or inspection rights granted hereunder (“Confidential
Information”), unless such information is known, or until such information becomes (through no improper action or inaction by
Purchaser or anyone to whom Purchaser disclosed Confidential Information) known, to the public; provided, however, that
a Purchaser may disclose such information (i) to such Purchaser’s attorneys, accountants, consultants, and other professionals to
the extent necessary to obtain their services in connection with such Purchaser’s investment in the Company provided that such attorneys,
accountants, consultants, and other professionals are bound by obligations of confidentiality and non-use that are as stringent as those
contained in this Agreement, (ii) to any prospective purchaser of any Shares from such Purchaser as long as such prospective purchaser
agrees in writing to be bound by the provisions of this Section 6, or (iii) to any affiliate of such Purchaser or to a partner, shareholder
or subsidiary of such Purchaser. Purchaser agrees to use the Confidential Information for the sole purpose of considering Purchaser’s
investment in the Company and not to engage in any trading of the Company’s common stock based the Confidential Information, unless
such information is known, or until such information becomes (through no improper action or inaction by Purchaser or anyone to whom Purchaser
disclosed Confidential Information) known, to the public.
7. Notices.
All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be delivered by hand or mailed
by first class certified or registered mail, return receipt requested, postage prepaid:
7.1 If
to the Company, at 260 Charles Street, Suite 302, Waltham, MA 02453, Attention: Corporate Secretary, or at such other address or addresses
as may have been furnished in writing by the Company to the Purchasers, with a copy to General Counsel, Marion Odence-Ford.
7.2 If
to a Purchaser, at such Purchaser’s address set forth on Exhibit A, or at such other address or addresses as may have been
furnished to the Company in writing by such Purchaser.
8. Expenses.
Except as otherwise expressly provided herein, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
9. Entire
Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such subject matter.
10. Amendments
and Waivers. Except as otherwise expressly set forth in this Agreement, any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively),
with the written consent of the Company and the holders of at least 50% of the Shares. Any amendment or waiver effected in accordance
with this Section 10 shall be binding upon each holder of any Shares, each future holder of all such securities, and the Company. No waivers
of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such term, condition or provision.
11. Counterparts.
This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12. Headings.
The headings of the sections, subsections, and paragraphs of this Agreement have been added for convenience only and shall not be deemed
to be a part of this Agreement.
13. Severability.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.
14. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding that body of
laws pertaining to conflicts of laws. Courts within the state of Delaware will have exclusive jurisdiction over all disputes between the
parties hereto arising out of or relating to this Agreement. The Company and the Purchasers each knowingly and willingly consent to and
agree to submit to the exclusive jurisdiction of such courts, to the exclusion of any other courts.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned
have hereunto set their hands as of the day and year first above written.
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COMPANY: |
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OptimizeRx
Corporation |
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By: |
/s/ William J. Febbo |
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Name: |
William J. Febbo |
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Title: |
Chief Executive Officer |
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PURCHASERS: |
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/s/
Michael Weintraub |
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Michael
Weintraub |
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/s/
Frank Hicks |
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Frank
Hicks |
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/s/
Theresa Greco |
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Theresa
Greco |
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/s/
Chad Gottfrid |
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Chad
Gottfrid |
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/s/
Karin Chun Hayes |
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Karin
Chun Hayes |
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/s/
Stacey Levas |
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Stacey
Levas |
