As filed with the Securities and Exchange Commission on August 17, 2020

 

Registration No. 

 

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, including zip code)

_____________________

 

AudioEye, Inc. Amended and Restated 2019 Equity Incentive Plan

(Full title of the Plan)

 

William Gleeson

General Counsel

5210 E. Williams Circle, Suite 750

Tucson, Arizona 85711

(206) 915-1192

(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 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. (Check One):

 

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 ¨ Accelerated filer ¨
Non-accelerated filer x Smaller reporting company x
Emerging growth company ¨    

  

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. ¨

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities
to be Registered

Amount to be
Registered (1)(2)

Proposed Maximum Offering Price Per Share (3) Proposed Aggregate Offering Price (3) Amount of Registration Fee (4)
Common Stock, par value $0.00001 per share 900,000 $13.13 $11,817,000 $1,533.85

 

(1)

Represents additional securities of common stock, par value $0.00001 per share (“Common Stock”), of AudioEye, Inc. (the “Registrant”) that are available for issuance under the AudioEye, Inc. Amended and Restated 2019 Equity Incentive Plan (the “Plan”).

 

(2)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also includes an indeterminate number of shares of Common Stock that may be offered and sold as a result of future stock splits, stock dividends or similar transactions under the Plan.

 

(3)

Pursuant to Securities Act Rule 457(c) and Rule 457(h), the maximum offering price, per share and in the aggregate, was calculated upon the basis of the average of the high and low prices of the Common Stock on August 13, 2020 ($13.13) as reported on the NASDAQ Capital Market.

 

(4)

Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $129.80 per $1,000,000 of the proposed maximum aggregate offering price.

 

 

 

 

 

EXPLANATORY NOTE

 

Except as the context otherwise requires, references to “we,” “our,” “us,” “AudioEye,” the “Company” and the “Registrant” are to AudioEye, Inc.

 

The Company’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on May 24, 2019 (File No. 333-231760) is hereby incorporated by reference. By such Registration Statement, the Company registered 1,000,000 shares of Common Stock, par value $.00001 per share, which were available for issuance in respect of awards to be granted under the AudioEye 2019 Equity Incentive Plan (the “2019 Equity Plan”). The board of directors of the Company adopted an amendment to the 2019 Equity Plan (the “Plan Amendment”), effective upon stockholder approval, which was received on May 18, 2020, in order to, among other things, increase the number of shares of Common Stock available for issuance in respect of awards to be granted under the 2019 Equity Plan from 1,000,000 shares of Common Stock to an aggregate of 1,900,000 shares of Common Stock.  This Registration Statement is to register the additional 900,000 common shares.

 

Pursuant to General Instruction E to Form S-8, the contents of such earlier Registration Statement are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of such earlier registration statement are modified as set forth in this Registration Statement.

 

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Item 8. Exhibits.

 

Exhibit No.   Description
5.1   Opinion of William Gleeson
23.1   Consent of MaloneBailey, LLP
23.2   Consent of William Gleeson (included in Exhibit 5.1)
24.1   Power of Attorney (set forth on signature page hereto)
99.1*  Amended and Restated AudioEye 2019 Equity Incentive Plan (Incorporated by Reference to Annex A to the definitive proxy statement filed on April 7, 2020)

 

* Incorporated herein by reference as indicated

 

 

 

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 August 17, 2020.

 

  AudioEye, Inc.  
        
  By:  /s/ Sachin Barot  
  Sachin Barot  
  Chief Financial Officer    

 

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POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Carr Bettis and Sachin Barot and each of them 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 or 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 they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

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.

 

Name   Title   Date
         
 /s/ Dr. Carr Bettis   Executive Chairman and Director   August 17, 2020
Dr.  Carr Bettis        
         
 /s/ David Moradi   Chief Executive Officer, Principal Executive Officer,   August 17, 2020
David Moradi   Chief Strategy Officer and Director    
         
 /s/ Sachin Barot   Chief Financial Officer, and   August 17, 2020
Sachin Barot   Principal Financial Officer    
         
 /s/ Jamil Tahir    Director   August 17, 2020
Jamil Tahir        
         
 /s/Anthony Coelho   Director   August 17, 2020
Anthony Coelho        
         
 /s/ Marc Lehmann   Director   August 17, 2020
Marc Lehmann        

   

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Exhibit 5.1

 

August 17, 2020

 

AudioEye, Inc.

5210 E. Williams Circle, Suite 750

Tucson, Arizona 85711

 

  Re. Registration Statement on Form S-8

AudioEye, Inc. Amended and Restated 2019 Equity Incentive Plan

 

Ladies and Gentlemen:

 

I am General Counsel to AudioEye, Inc., a Delaware corporation (the “Company” or “you”), and have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about August 17, 2020 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 900,000 additional shares (the “Shares”) of common stock, par value $0.00001 per share, of the Company (“Common Stock”), issuable under the AudioEye, Inc. Amended and Restated 2019 Equity Incentive Plan (the “2019 Plan”).

 

In connection herewith, I have examined:

 

(1)       the 2019 Plan; and

 

(2)       the Registration Statement.

 

I have also examined originals or copies, certified or otherwise identified to my satisfaction, of the Company’s certificate of incorporation and bylaws and such other corporate records, agreements and instruments of the Company, certificates of public officials and officers of the Company, and such other documents, records and instruments, and I have made such legal and factual inquiries, as I have deemed necessary or appropriate as a basis for me to render the opinion hereinafter expressed. In my examination of the foregoing, I have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to me as originals and the conformity with authentic original documents of all documents submitted to me as copies or by facsimile or other means of electronic transmission, or which I obtained from the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) or other sites maintained by a court or governmental authority or regulatory body and the authenticity of the originals of such latter documents. If any documents I examined in printed, word processed or similar form has been filed with the Commission on EDGAR or such court or governmental authority or regulatory body, I have assumed that the document so filed is identical to the document I examined except for formatting changes.

 

When relevant facts were not independently established, I have relied without independent investigation as to matters of fact upon statements of governmental officials and upon representations made in or pursuant to the Registration Statement and certificates or statements of appropriate representatives of the Company.

 

Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, I am of the opinion that the Shares have been duly authorized for issuance and upon issuance and delivery of the Shares upon payment therefor, in accordance with the terms of the 2019 Plan, and any relevant agreements thereunder, the Shares will be validly issued, fully paid and non-assessable.

 

In addition to the assumptions, comments, qualifications, limitations and exceptions set forth above, the opinion set forth herein is further limited by, subject to and based upon the following assumptions, comments, qualifications, limitations and exceptions:

 

My opinion herein reflects only the application of the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the Delaware Constitution and the Delaware General Corporation Law. The opinion set forth herein is made as of the date hereof and is subject to, and may be limited by, future changes in factual matters, and I undertake no duty to advise you of the same. The opinion expressed herein is based upon the law in effect (and published or otherwise generally available) on the date hereof, and I assume no obligation to revise or supplement this opinion should such law be changed by legislative action, judicial decision or otherwise. In rendering my opinion, I have not considered, and hereby disclaim any opinion as to, the application or impact of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency.

 

 

 

 

This opinion letter is being delivered by me in connection with the filing of the Registration Statement with the Commission. I do not render any opinions except as set forth above. I hereby consent to the inclusion of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to this firm in the Registration Statement. I also consent to the filing copies of this opinion letter with agencies of such states as you deem necessary in the course of complying with the laws of such states regarding the offering and sale of the Shares. In giving this consent, I do not thereby concede that I am in 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,

 

/s/ William Gleeson

 

William Gleeson

 

 

 

 

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 of our report dated March 27, 2020 with respect to the audited consolidated financial statements of AudioEye, Inc. for the years ended December 31, 2019 and 2018. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.

 

We also consent to the references to us under the heading “Experts” in such Registration Statement.

 

/s/ MaloneBailey, LLP

www.malonebailey.com

Houston, Texas

August 17, 2020