UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
OptimizeRx Corp.
(Exact name of registrant as specified in its charter)
| Nevada | 26-1265381 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
400 Water Street, Suite 200,
Rochester, MI 48307
(Address of Principal Executive Offices)
Amended and Restated OptimizeRx Corp. 2013 Incentive Plan
(Full title of the plan)
Spring Valley Solutions, LLC
4955 S. Durango Rd. Ste. 165
Las Vegas, NV 89113
(Name and address of agent for service)
(248) 651-6568
(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: | ☐ | Accelerated filer: | ☒ | |||
| Non-accelerated filer: | ☐ | Smaller reporting company: | ☒ | |||
| 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 each class of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share (2) | Proposed
maximum aggregate offering price | Amount
of registration fee | ||||||||||||
| Common Stock $0.001 par value | 500,000 | $ | 8.54 | $ | 4,270,000 | $ | 554.25 | |||||||||
| (1) | This Registration Statement covers an additional 500,000 shares of Common Stock that may be offered or issued pursuant to the Amended and Restated OptimizeRx Corp. 2013 Equity Incentive Plan (the “Plan”). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of shares of Common Stock that may be offered or issued by reason of stock splits, stock dividends or similar transactions that become issuable under the Plan.
|
| (2) | Estimated in accordance with Rule 457(c) promulgated under the Securities Act solely for the purpose of calculating the amount of the registration fee on the basis of the average of the high and low price per share of the Registrant’s Common Stock as reported on the Nasdaq Capital Market on April 7, 2020. |
This registration statement shall become effective upon filing in accordance with Rule 462 under the Securities Act.
EXPLANATORY NOTE
In accordance with General Instruction E to Form S-8, this Registration Statement incorporates by reference the contents of Registration Statement No. 333-189439 on Form S-8 filed by OptimizeRx Corp. (the “Company”) on June 19, 2013, the Registration Statement No. 333-210653 on Form S-8 filed by the Company on April 8, 2016 and the Registration Statement No. 333-230212on Form S-8 filed by the Company on March 12, 2019, relating to shares of Common Stock issuable pursuant to the OptimizeRx Corp. 2013 Incentive Plan (as amended and restated, the “Plan”). This Registration Statement, which is being filed to register an additional 500,000 shares of Common Stock made available for issuance pursuant to the Plan, consists of the facing page, this page, other required information, required opinions, consents and other exhibits, and the signature page.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The SEC allows us to “incorporate by reference” the information we file with the SEC. This permits us to disclose important information to you by referring to these filed documents. Any information referred to in this way is considered part of this prospectus supplement. The information incorporated by reference is an important part of this prospectus supplement and the accompanying prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the following documents that have been filed with the SEC (other than information furnished under Item 2.02, Item 7.01 of Item 8.01 of Form 8-K and all exhibits related to such items):
| ● | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 26, 2020; | |
| ● | The description of our common stock in our Registration Statement on Form S-3/A, filed with the SEC on December 11, 2018, including any amendment or reports filed for the purpose of updating such description. |
In addition, all other documents filed (not furnished) by us pursuant to Section 13(a), Section 13(c), Section 14 or Section 15(d) of the Exchange Act on or after the date of this reoffer prospectus and prior to the termination of this offering, shall be deemed to be incorporated by reference into this reoffer prospectus and to be a part of this reoffer prospectus from the date of the filing of such documents; provided, however, that documents or information deemed to have been furnished to and not filed with the SEC in accordance with the rules of the SEC shall not be deemed incorporated by reference into this reoffer prospectus.
Any information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus supplement and the accompanying prospectus or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.
You may request, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such exhibits are specifically incorporate by reference), by contacting Douglas Baker, c/o OptimizeRx Corporation., at 400 Water Street, Suite 200, Rochester, MI 48307. Our telephone number is (248) 651-6568.
Item 8. Exhibits.
| 1 | Incorporated by reference to the Form S-1, filed by the Company with the Securities and Exchange Commission on November 12, 2008. |
| 2 | Incorporated by reference to the Form 8-K, filed by the Company with the Securities and Exchange Commission on July 16, 2010. |
| 3 | Incorporated by reference to the Form 10-K, filed by the Company with the Securities and Exchange Commission on March 26, 2020. |
| ** | provided herewith |
II-1
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:
(i) include any Prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) reflect in the Prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume 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 Prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in 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; and
(iii) include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) For purposes of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the Registrant is subject to Rule 430C, each Prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than Prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or Prospectus that is part of the registration or made in a document incorporated or deemed incorporated by reference into the registration statement or Prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or Prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant 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 registrant 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 registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing Prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing Prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 24 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
II-2
SIGNATURES
In accordance with 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 to a filing on Form S-8 and authorized this filing to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rochester, Michigan on April 10, 2020.
| OPTIMIZERX CORPORATION | ||
| By: | /s/ William Febbo | |
| William Febbo | ||
| Chief Executive Officer (Principal Executive Officer) and Director | ||
| By: | /s/ Doug Baker | |
| Doug Baker | ||
| Chief Financial Officer (Principal Financial and Accounting Officer) | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors of the Company, hereby constitute and appoint William Febbo and Doug Baker and each of them, the true and lawful agents and attorneys-in-fact of the undersigned with full power and authority in said agents and attorneys-in-fact, and in any one or more of them, to sign for the undersigned and in their respective names as an officer/director of the Company, a registration statement on Form S-8 (or other appropriate form) relating to the offer and sale of common stock of the Company pursuant to the Plans (or any and all amendments, including post-effective amendments, to such registration statement) and file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and with full power of substitution; hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may 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 dates indicated.
| /s/ William Febbo | Chief Executive Officer | April 10, 2020 | ||
| William Febbo | (Principal Executive Officer) and Director | |||
| /s/ Doug Baker | Chief Financial Officer | April 10, 2020 | ||
| Doug Baker | (Principal Financial and Accounting Officer) | |||
| /s/ Lynn Vos | Director | April 10, 2020 | ||
| Lynn Vos | ||||
| /s/ Patrick Spangler | Director | April 10, 2020 | ||
| Patrick Spangler | ||||
| /s/ James Lang | Director | April 10, 2020 | ||
| James Lang | ||||
| /s/ Gus D. Halas | Director | April 10, 2020 | ||
| Gus D. Halas |
II-3
Exhibit 5.1
April 10, 2020
OptimizeRx Corp.
400 Water Street, Suite 200
Rochester, MI 48307
| Re: | OptimizeRx Corp., Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel for OptimizeRx Corp., a Nevada corporation (the “Company”), in connection with the preparation of the registration statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”), relating to the offering of 500,000 shares of the Company’s common stock (the “Shares”), which may be issued pursuant to the Company’s Fourth Amended and Restated 2013 Equity Incentive Plan (the “Plan”).
In rendering the opinion set forth below, we have reviewed: (a) the Registration Statement and the exhibits attached thereto; (b) the Company’s Articles of Incorporation, as amended; (c) the Company’s Bylaws, as amended; (d) certain records of the Company’s corporate proceedings as reflected in its minute books including resolutions of the board of directors approving the Plan; (e) the Plan; and (f) such statutes, records and other documents as we have deemed relevant. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and conformity with the originals of all documents submitted to us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares have been validly authorized, and when the Registration Statement has become effective under the Act, such Shares will, when issued pursuant to the terms of the Plan, be legally issued, fully paid and non-assessable shares of the Company’s common stock.
Very truly yours,
The Doney Law Firm
| /s/ Scott Doney | |
| Scott Doney, Esq. |
OptimizeRx Corp.
April 10, 2020
Page 2
CONSENT
WE HEREBY CONSENT to the inclusion of our name and use of our opinion in connection with the Form S-8 Registration Statement filed with the Securities and Exchange Commission as counsel for the registrant, OptimizeRx Corp.
Very truly yours,
The Doney Law Firm
| /s/ Scott Doney | |
| Scott Doney, Esq. |
Exhibit 23.1
Independent Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in this Registration Statement of OptimizeRx Corporation on Form S-8 of our report dated March 26, 2020, with respect to our audit of the consolidated financial statements of OptimizeRx Corporation and Subsidiaries as of December 31, 2019 and for the year then ended and our report dated March 26, 2020 with respect to our audit of the effectiveness of internal control over financial reporting of OptimizeRx Corporation and Subsidiaries as of December 31, 2019 appearing in the Annual Report on Form 10-K of OptimizeRx Corporation for the year ended December 31, 2019
Our report on the consolidated financial statements refers to a change in the Company’s method of accounting for leases in 2019 due to the adoption of ASU No. 2016-02, Leases (Topic 842), as amended, effective January 1, 2019, using the modified retrospective approach.
Our report on the effectiveness of internal control over financial reporting expressed an adverse opinion because of the existence of material weaknesses.
/s/ Marcum llp
Marcum llp
New York NY
April 10, 2020
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 12, 2019, with respect to the consolidated financial statements of OptimizeRx Corp. for the year ended December 31, 2018, included in its Annual Report (Form 10-K) for the year ended December 31, 2019.
SADLER, GIBB AND ASSOCIATES, LLC
Salt Lake City, Utah
April 10, 2020