As filed with the Securities and Exchange Commission on June 7,
2024
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)
Copy to:
Matt Kuhn, Esq.
Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
(612) 766-7000
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 |
¨ |
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| Non-accelerated filer |
x |
Smaller reporting company |
x |
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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. ¨
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:
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 the Registrant shall 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, employee or agent
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, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action, suit or 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 Registrant, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The Registrant’s bylaws
provide that the Registrant is not required to indemnify any director or officer for expenses incurred in connection with a derivative
proceeding as to which such person is adjudged to be liable to the Registrant 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 determines that such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. In addition, the Registrant’s
bylaws provide that expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Registrant in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount if it shall be ultimately determined that he or she is not entitled to be indemnified. Further, the
Registrant’s bylaws provide that the indemnification and advancement of expenses provided by its bylaws shall not be exclusive
of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, agreement, vote
of stockholders or disinterested directors or otherwise.
The Registrant’s Restated
Certificate of Incorporation provides that a director or officer of the Registrant shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a director or officer; provided, however,
that the foregoing shall not eliminate or limit the liability of a director or officer (i) for any breach of the director’s
or officer’s duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law,
(iv) for any transaction from which the director or officer derived an improper personal benefit, or (v) in the case of an
officer, in any action by or in the right of the Registrant.
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 Registrant maintains
insurance policies that provide coverage to its directors, officers, employees or agents against certain liabilities.
Item 8. Exhibits.
| (1) |
Incorporated by reference to Exhibit 3.3 to the Registrant’s
Form 8-K, filed with the Commission on May 24, 2024. |
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|
| (2) |
Incorporated by reference to Exhibit 3.1 to the Registrant’s
Form 8-K, filed with the Commission on May 24, 2024. |
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| (3) |
Incorporated by reference to Exhibit 10.1 to the Registrant’s
Form 8-K, filed with the Commission on May 24, 2024. |
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 7, 2024.
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AUDIOEYE, INC. |
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By: |
/s/ David Moradi |
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David Moradi |
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Chief Executive Officer |
POWER OF ATTORNEY
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 |
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Title |
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Date |
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/s/ David Moradi |
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Chief Executive Officer, Director
(Principal Executive Officer) |
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June 7, 2024 |
| David Moradi |
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/s/ Kelly Georgevich |
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Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
June 7, 2024 |
| Kelly Georgevich |
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| /s/ Dr. Carr Bettis |
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Executive Chairman, Director |
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June 7, 2024 |
| Dr. Carr Bettis |
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| /s/ Anthony Coelho |
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Director |
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June 7, 2024 |
| Anthony Coelho |
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| /s/ Jamil Tahir |
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Director |
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June 7, 2024 |
| Jamil Tahir |
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| /s/ Katherine E. Fleming |
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Director |
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June 7, 2024 |
| Katherine E. Fleming |
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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 7, 2024
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 (the “Shares”), par value $0.00001 per share, not previously registered, pursuant to the
AudioEye, Inc. 2020 Equity Incentive Plan, as amended (the “Plan”).
For purposes of this opinion letter, we have examined
the Plan, the Registration Statement, the Company’s Restated Certificate of Incorporation, as currently in effect, 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.
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Very truly yours, |
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/s/ Faegre Drinker Biddle & Reath
LLP |
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FAEGRE DRINKER BIDDLE &
REATH LLP |
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 7, 2024
with respect to the audited consolidated financial statements of AudioEye, Inc. for the years ended December 31, 2023 and 2022,
included in AudioEye’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Securities and
Exchange Commission.
/s/ MaloneBailey, LLP
www.malonebailey.com
Houston, Texas
June 7, 2024
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 |
$21.805 |
$32,707,500 |
0.00014760 |
$4,827.63 |
| Total Offering Amounts |
|
$32,707,500 |
|
$4,827.63 |
| Total Fee Offsets |
|
|
|
— |
| Net Fee Due |
|
|
|
$4,827.63 |
| (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 June 4, 2024 of a share of common stock on The Nasdaq Capital Market. |
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