UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
ON
FORM S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
OPTIMIZERX
CORP.
(Exact
name of registrant as specified in its charter)
Nevada
|
|
7389
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|
26-1265381
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(State
or other jurisdiction of
incorporation
or organization)
|
|
(Primary
Standard Industrial
Classification
Code Number)
|
|
(I.R.S.
Employer
Identification
No.)
|
400
Water Street, Suite 200
Rochester,
MI 48307
(248)
651-6568
|
|
Doney
Ventures, Inc.
4955
S. Durango Rd. Ste. 165.
Las
Vegas, NV 89113
(702)
982-5686
|
(Address,
including zip code, and telephone number, including area code, of principal executive offices)
|
|
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
|
Approximate
date of commencement of proposed sale to the public:
From
time to time after this registration statement becomes effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the
same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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
|
☐ (Do not check if
a smaller reporting company)
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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 to Section 7(a)(2)(B) of the Securities Act. ☐
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL
THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE.
With
copies to:
Scott
Doney, Esq.
The
Doney Law Firm
4955
S. Durango Rd. Ste 165
Las
Vegas, NV 89113
Telephone:
(702) 982-5686
Explanatory
Note
This registration statement on Form
S-3 constitutes a post-effective amendment to our registration statement on Form S-1 (Registration No. 333-225095). The
Form S-1, as amended, was declared effective on June 8, 2018. We are filing this post-effective amendment on Form S-3 for
the purpose of converting the registration statement on Form S-1 into a Registration Statement on Form S-3 because we are eligible
to use Form S-3. This registration statement on Form S-3 contains an updated prospectus relating to the offering and sale
of the shares that were registered for resale on the registration statement on Form S-1.
All filing fees payable in connection
with the registration of the shares registered by the registration statement on Form S-1 were paid by the registrant at the time
of the initial filing of such registration statement.
No additional securities are registered hereby.
The
information in this prospectus is not complete and may be changed. This prospectus is included in a registration statement that
we filed with the Securities and Exchange Commission. The Selling Shareholders cannot sell these securities under this registration
statement until this registration statement becomes effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated July
3, 2018
PROSPECTUS
OPTIMIZERX
CORP.
1,666,669
Shares of Common Stock
This
prospectus relates to the resale or other disposition by the Selling Shareholders named herein or their transferees of up to 1,666,669
shares of our Common Stock, par value $0.001 per share (the “Common Stock”).
The
Selling Shareholders may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of Common Stock
or interests in shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded or in
private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related
to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. See “Plan of
Distribution” beginning on page 10 for more information.
We
will not receive any of the proceeds from the Common Stock sold by the Selling Shareholders.
We
have agreed to pay certain expenses in connection with this registration statement. The Selling Shareholders will pay all underwriting
discounts and selling commissions, if any, in connection with the sale or other disposition of the shares of Common Stock covered
hereby.
Our Common Stock is traded on the Nasdaq
Capital Market under the symbol “OPRX.” On July 2, 2018, the last reported sale price of our Common Stock was $10.10
per share.
A one-for-three reverse stock split of
our common stock was effected on May 14, 2018. All share and per share information in this Prospectus has been retroactively adjusted
to give effect to the reverse stock split for all periods presented.
Investing
in our Common Stock involves risks. See “Risk Factors” beginning on page 3.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus July
3, 2018
Table
of Contents
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement we filed with the Securities and Exchange Commission, or the SEC. Under this registration
process, the selling shareholders or their transferees may, from time to time, sell or otherwise dispose of up to 1,666,669 shares
of our Common Stock, as described in this prospectus. You should read this prospectus carefully before making an investment decision.
You
may only rely on the information contained in this prospectus or that we have referred you to. We have not authorized anyone to
provide you with additional or different information. This prospectus does not constitute an offer to sell or a solicitation of
an offer to buy any securities other than the shares of our Common Stock offered by this prospectus. This prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any Common Stock in any circumstances or any jurisdiction in
which such offer or solicitation is not permitted. You should not assume that the information contained in this prospectus is
accurate as of any date other than the date on the front cover of this prospectus regardless of the time of delivery of this prospectus
or any sale of our Common Stock. The rules of the SEC may require us to update this prospectus in the future.
As
used in this prospectus, unless the context requires otherwise, the terms “we”, “us”, “our”,
or “the Company” refer to OptimizeRx Corp. and its subsidiaries on a consolidated basis. References to “Selling
Shareholders” refer to those shareholders listed herein under “Selling Shareholders” and their successors, assignees
and permitted transferees.
ABOUT
FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), about the Company and its subsidiaries. These forward-looking statements are intended to be covered by the safe harbor
for forward-looking statements provided by the Private Securities Litigation Reform Act of 1995. Forward-looking statements are
not statements of historical fact, and can be identified by the use of forward-looking terminology such as “believes”,
“expects”, “may”, “will”, “could”, “should”, “projects”,
“plans”, “goal”, “targets”, “potential”, “estimates”, “pro forma”,
“seeks”, “intends”, or “anticipates” or the negative thereof or comparable terminology. Forward-looking
statements include discussions of strategy, financial projections, guidance and estimates (including their underlying assumptions),
statements regarding plans, objectives, expectations or consequences of various transactions, and statements about the future
performance, operations, products and services of the Company and its subsidiaries. We caution our shareholders and other readers
not to place undue reliance on such statements.
Our
businesses and operations are and will be subject to a variety of risks, uncertainties and other factors. Consequently,
actual results and experience may materially differ from those contained in any forward-looking statements. Such risks,
uncertainties and other factors that could cause actual results and experience to differ from those projected include, but
are not limited to, the risk factors set forth in the section entitled “Risk Factors” beginning on page 3 of
this prospectus.
All
written or oral forward-looking statements attributable to us or any person acting on our behalf made after the date of this prospectus
are expressly qualified in their entirety by the risk factors and cautionary statements contained in and incorporated by reference
into this prospectus. Unless legally required, we do not undertake any obligation to release publicly any revisions to such forward-looking
statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated
events.
SUMMARY
The
following summary highlights selected information contained elsewhere in this prospectus and in the documents incorporated by
reference in this prospectus and does not contain all the information you will need in making your investment decision. You should
read carefully this entire prospectus and the documents incorporated by reference in this prospectus before making an investment
decision, especially the information presented under the heading “Risk Factors.”
Business
Summary
We
are a leading provider of digital health messaging via electronic health records (EHRs), providing a direct channel for pharmaceutical
companies to communicate with healthcare providers. Our cloud-based solution supports patient adherence to medications by providing
real-time access to financial assistance, prior authorization, education and critical clinical information. Our network is comprised
of leading EHR platforms and provides more than half a million healthcare providers access to these benefits within their workflow
at the point of care.
The
Shares Issued in Connection With the May 2018 Private Placement Financing
On
May 2, 2018, we entered into a purchase agreement (the “Purchase Agreement”) with the purchasers identified on the
signature pages thereto (the “Investors”), pursuant to which we sold to the Investors an aggregate of 1,666,669 shares
(the “Shares”) of our Common Stock, par value $0.001 per share (“Common Stock”), for $5.40 per Share,
or gross proceeds of approximately $9,000,000 (the “Offering”).
In
connection with the Offering, on May 2, 2018, we entered into a registration rights agreement with the Investors (the “Registration
Rights Agreement”), pursuant to which we agreed to register the Shares acquired by the Investors in the Offering (the “Registrable
Securities”) for sale or other disposition by the Selling Shareholders or their transferees. Pursuant to the Registration
Rights Agreement, we agreed to file a registration statement (the “Registration Statement”) with the Securities and
Exchange Commission (the “SEC”) for the resale or other disposition of the Registrable Securities within 30 days following
the close of the Offering and to use our commercially reasonable efforts to cause the Registration Statement to be declared effective
as soon as practicable after the filing thereof.
In
the event that, among other things, the Registration Statement (i) is not been filed by 30 days following the close of the Offering,
(ii) is not declared effective by the earlier of (A) five business days after the SEC informs the Company that no review of the
Registration Statement will be made or that the SEC has no further comments on the Registration Statement and (B) 90 days following
the close of the Offering, or (iii) after the effective date of the Registration Statement sales cannot be made thereunder (other
than certain allowed delays), we have agreed to make payments to each Investor as liquidated damages in an amount equal to 1.5%
of the aggregate amount invested by each such Investor per 30-day period. In addition, we have agreed to keep the Registration
Statement continuously effective (subject to certain allowed delays) until the earlier of (i) the date on which all Registrable
Securities covered by such Registration Statement as amended from time to time, have been sold or otherwise disposed of pursuant
to the Registration Statement or in a transaction in which the transferee receives freely tradable shares., and (ii) the date
on which the Registrable Securities no longer constitute “Registrable Securities” thereunder.
RISK
FACTORS
Your investment in our securities involves
a high degree of risk. You should carefully read and consider the risks set forth under the caption “Risk Factors”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, and any updates in our subsequent Quarterly Reports
on Form 10-Q, which are incorporated by reference in this prospectus, and all of the other information appearing in this prospectus
or incorporated by reference in this prospectus, in light of your particular investment objectives and financial circumstances.
If any of the events described actually
occur, or if additional risks and uncertainties not presently known to us or that we currently deem immaterial, materialize, then
our business, financial condition, cash flows, and operating results could be materially adversely affected. As a result, the
trading price of our common stock and the value of the securities offered could decline, and you could lose a part or all of your
investment.
USE
OF PROCEEDS
All
of the shares of Common Stock covered by this prospectus are being sold or otherwise disposed of by the Selling Shareholders or
their transferees. See “Selling Shareholders” below. We will not receive any proceeds from the sale of other disposition
of the shares covered hereby.
The
Company will pay all expenses associated with effecting the registration of the shares covered hereby, including filing and printing
fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the shares for sale under applicable
state securities laws, listing fees, fees and expenses of one counsel to the Investors up to an aggregate of $10,000 and the Investors’
other reasonable out-of-pocket expenses in connection with the registration, but excluding discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals with respect to the shares being sold.
DILUTION
The Selling Stockholders are offering
for resale up to 1,666,669 shares of common stock. The resale of the current outstanding shares of common stock under this prospectus
will not dilute the ownership interests of existing stockholders.
SELLING
SHAREHOLDERS
We
have prepared this prospectus to allow the Selling Shareholders or their transferees to sell or otherwise dispose of, from time
to time, up to 1,666,669 shares of our Common Stock. All of the shares of Common Stock being offered under this prospectus were
issued in connection with our May 2018 Private Placement.
The
shares were sold pursuant to an exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation
D under the Securities Act. In connection therewith, the Investors made to us certain representations, warranties, covenants,
and conditions customary for private placement investments.
The table below presents information
regarding the Selling Shareholders and the shares of our Common Stock that they may sell or otherwise dispose of from time to
time under this prospectus. Percentages of beneficial ownership are based upon 11,548,095 shares of Common Stock issued and outstanding
as of June 29, 2018. Beneficial ownership is determined under Section 13(d) of the Exchange Act and generally includes voting
or investment power with respect to securities and including any securities that grant the Selling Shareholders the right to acquire
Common Stock within 60 days of June 29, 2018. Unless otherwise noted, each person or group identified possesses sole voting and
investment power with respect to the shares, subject to community property laws where applicable.
We
do not know when or in what amounts the Selling Shareholders may sell or otherwise dispose of the shares covered hereby. We currently
have no agreements, arrangements or understandings with the Selling Shareholders regarding the sale or other disposition of any
of the shares by them other than the registration rights agreement described above. The Selling Shareholders might not sell any
or all of the shares covered by this prospectus or may sell or dispose of some or all of the shares other than pursuant to this
prospectus. Because the Selling Shareholders may not sell or otherwise dispose of some or all of the shares covered by this prospectus
and because there are currently no agreements, arrangements or understandings with respect to the sale or other disposition of
any of the shares, we cannot estimate the number of the shares that will be held by the Selling Shareholders after completion
of the offering. For purposes of determining the beneficial ownership of the Selling Shareholders after this offering, we have
assumed that all of the shares covered hereby have been sold pursuant to the registration statement of which this prospectus forms
a part.
Each
Selling Shareholder has indicated to us that neither it nor any of its affiliates has held any position or office or had any other
material relationship with us in the past three years except as described in the footnotes to the table.
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Shares of Common Stock
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Name of Selling Shareholder
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Beneficially
Owned Prior to
the Sale of all
Shares covered by
this Prospectus
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Covered by
this Prospectus
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Beneficially
Owned After
the Sale of all
Shares covered by
this Prospectus
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As a Percent of
Total Outstanding
After the Sale of
Shares covered by
this Prospectus
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Special Situations Fund III QP, L.P.(1)
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812,130
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552,593
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259,537
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2.2%
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Special Situations Cayman Fund, L.P. (1)
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303,730
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206,667
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97,063
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Less than 1%
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Special Situations Private Equity Fund, L.P.(1)
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252,065
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166,667
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|
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85,398
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Less than 1%
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Park West Partners International Limited(2)
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68,733
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|
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59,267
|
|
|
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9,466
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Less than 1%
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Park West Investors Master Fund, Limited(2)
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607,935
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|
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524,067
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|
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83,868
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Less than 1%
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First Bank & Trust Custodian for Ronald L. Chez IRA(3)
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157,408
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157,408
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0
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0%
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(1)
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AWM
Investment Company, Inc. (“AWM”) is the investment adviser to the Special
Situations Fund III, QP, L.P., the Special Situations Cayman Fund, L.P. and the Special
Situations Private Equity Fund, L.P. (collectively, the “Funds”). As the
investment adviser to the Funds, AWM holds sole voting and investment power over the
shares held by the Funds. Austin W. Marxe, David M. Greenhouse and Adam Stettner are
the principal owners of AWM.
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(2)
|
Park
West Asset Management LLC (“PWAM”) is the investment manager to Park West
Investors Master Fund, Limited (“PWIMF”), and Park West Partners International,
Limited (“PWPI”). Peter S. Park, manager of PWAM, has sole voting and investment
power with respect to the shares held by PWIMF and PWPI.
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(3)
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Ronald
l. Chez has voting and dispositive power with respect to the shares.
|
Information
about the Selling Shareholders may change from time to time. Any changed information with respect to which we are given notice
will be included in prospectus supplements.
PLAN
OF DISTRIBUTION
The
Selling Shareholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares
of Common Stock or interests in shares of Common Stock received after the date of this prospectus from a Selling Shareholder as
a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise dispose of any
or all of their shares of Common Stock or interests in shares of Common Stock on any stock exchange, market or trading facility
on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices
at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at
negotiated prices.
The
Selling Shareholders may use any one or more of the following methods when disposing of shares or interests therein:
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●
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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●
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block
trades in which the broker-dealer will attempt to sell the shares as agent, but may position
and resell a portion of the block as principal to facilitate the transaction;
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●
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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●
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an
exchange distribution in accordance with the rules of the applicable exchange;
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●
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privately
negotiated transactions;
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●
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short
sales effected after the date the registration statement of which this Prospectus is
a part is declared effective by the SEC;
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●
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through
the writing or settlement of options or other hedging transactions, whether through an
options exchange or otherwise;
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●
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broker-dealers
may agree with the Selling Shareholders to sell a specified number of such shares at
a stipulated price per share;
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●
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a
combination of any such methods of sale; and
|
|
●
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any
other method permitted by applicable law.
|
The
Selling Shareholders may, from time to time, pledge or grant a security interest in some or all of the shares of Common Stock
owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer
and sell the shares of Common Stock, from time to time, under this prospectus, or under an amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of Selling Shareholders to include the pledgee,
transferee or other successors in interest as Selling Shareholders under this prospectus. The Selling Shareholders also may transfer
the shares of Common Stock in other circumstances, in which case the transferees, pledgees or other successors in interest will
be the selling beneficial owners for purposes of this prospectus.
In
connection with the sale of our Common Stock or interests therein, the Selling Shareholders may enter into hedging transactions
with broker-dealers or other financial institutions, which may in turn engage in short sales of the Common Stock in the course
of hedging the positions they assume. The Selling Shareholders may also sell shares of our Common Stock short and deliver these
securities to close out their short positions, or loan or pledge the Common Stock to broker-dealers that in turn may sell these
securities. The Selling Shareholders may also enter into option or other transactions with broker-dealers or other financial institutions
or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The
aggregate proceeds to the Selling Shareholders from the sale of the Common Stock offered by them will be the purchase price of
the Common Stock less discounts or commissions, if any. Each of the Selling Shareholders reserves the right to accept and, together
with their agents from time to time, to reject, in whole or in part, any proposed purchase of Common Stock to be made directly
or through agents. We will not receive any of the proceeds from this offering.
The
Selling Shareholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under
the Securities Act of 1933, provided that they meet the criteria and conform to the requirements of that rule.
The
Selling Shareholders and any underwriters, broker-dealers or agents that participate in the sale of the Common Stock or interests
therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions,
concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities
Act. Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be
subject to the prospectus delivery requirements of the Securities Act.
To
the extent required, the shares of our Common Stock to be sold, the names of the Selling Shareholders, the respective purchase
prices and public offering prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with
respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In
order to comply with the securities laws of some states, if applicable, the Common Stock may be sold in these jurisdictions only
through registered or licensed brokers or dealers. In addition, in some states the Common Stock may not be sold unless it has
been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied
with.
We
have advised the Selling Shareholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales
of shares in the market and to the activities of the Selling Shareholders and their affiliates. In addition, to the extent applicable
we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the Selling Shareholders
for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The Selling Shareholders may indemnify
any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities
arising under the Securities Act.
We
have agreed to indemnify the Selling Shareholders against liabilities, including liabilities under the Securities Act and state
securities laws, relating to the registration of the shares offered by this prospectus.
We
have agreed with the Selling Shareholders to keep the registration statement of which this prospectus constitutes a part effective
until the earlier of (i) the date that such securities become eligible for resale without volume or manner-of-sale restrictions
and without current public information pursuant to Rule 144 and certain other conditions have been satisfied, or (ii) all of the
securities have been sold or otherwise disposed of pursuant to the registration statement of which this prospectus forms a part
or in a transaction in which the transferee receives freely tradable shares.
INTERESTS
OF NAMED EXPERTS
No
expert or counsel named in this prospectus as having prepared or certified any part of this prospectus or having given an opinion
upon the validity of the securities being registered or upon other legal matters in connection with the registration or offering
of the Common Stock was employed on a contingency basis, or had, or is to receive, in connection with the offering, a substantial
interest, direct or indirect, in the registrant or any of its parents or subsidiaries. Nor was any such person connected with
the registrant or any of its parents or subsidiaries as a promoter, managing or principal underwriter, voting trustee, director,
officer, or employee.
The
Doney Law Firm, our independent legal counsel, has provided an opinion on the validity of our Common Stock.
Sadler,
Gibb & Associates, LLC and KLJ & Associates, LLP have audited our financial statements included in this prospectus and
registration statement to the extent and for the periods set forth in their audit reports. Sadler, Gibb & Associates, LLC
and KLJ & Associates, LLP have presented their respective reports with respect to our audited financial statements. The reports
of Sadler, Gibb & Associates, LLC and KLJ & Associates, LLP are included in reliance upon their authority as experts in
accounting and auditing.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES
ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling
persons pursuant to the following provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid
by a director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the shares being registered, we 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 Act and will be governed by the final adjudication of
such issue.
AVAILABLE INFORMATION
We have filed a registration statement
on Form S-3 with the SEC relating to the securities offered by this prospectus. This prospectus, which constitutes a part
of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits
thereto. We have omitted parts of the registration statement, as permitted by the rules and regulations of the SEC. Statements
contained in this prospectus as to the contents of any contract or other document that is filed as an exhibit to the registration
statement are not necessarily complete and each such statement is qualified in all respects by reference to the full text of such
contract or document. For further information with respect to us and the common stock, reference is hereby made to the registration
statement and the exhibits thereto.
We are subject to the information and
periodic reporting requirements of the Exchange Act, and in accordance therewith file periodic reports, current reports, proxy
statements and other information with the SEC. Such periodic reports, current reports, proxy statements, other information
and a copy of the registration statement relating to the securities offered by this prospectus may be inspected by anyone without
charge and copies of these materials may be obtained upon the payment of the fees prescribed by the SEC, at the Public Reference
Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation
of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The registration statement relating to the securities
offered by this prospectus and the periodic reports, current reports, proxy statements and other information filed by us are also
available to the public through the SEC’s website at
http://www.sec.gov
and through our website at
http://www.optimizeRx.com
.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by
reference in this prospectus the information in documents we file with the SEC, which means that we can disclose important information
to you by referring you to those documents. The information in this prospectus updates (and, to the extent of any conflict, supersedes)
information incorporated by reference that we have filed with the SEC prior to the date of this prospectus.
You should
read the information incorporated by reference because it is an important part of this prospectus.
We incorporate by reference the documents
listed below (SEC File No. 001-38543), excluding any portions of any Current Report on Form 8-K that are not deemed “filed”
pursuant to the General Instructions of Form 8-K:
|
●
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the
SEC on March 8, 2018;
|
|
●
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2018, filed with
the SEC on May 2, 2018;
|
|
●
|
Current
Reports on Form 8-K filed with the SEC on March 27, 2018 and February 2, 2018; and
|
|
●
|
The
description of our common stock in our Registration Statement on Form 8-A, filed with
the SEC on June 19, 2018, including any amendment or reports filed for the purpose of
updating such description.
|
We also incorporate by reference any
future filings we will make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act (other than filings or
portions of filings that are furnished under applicable SEC rules rather than filed), including those made after the date of filing
of the initial registration statement of which this prospectus is a part and prior to its effectiveness, until we file a post-effective
amendment that indicates the termination of the offering of the securities made by this prospectus. Information in such
future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings
will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is
incorporated or deemed incorporated herein by reference to the extent that statements in the later filed document modify or replace
such earlier statements.
We hereby undertake to provide without
charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy
of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus, other
than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus
incorporates. To request such materials, please contact Mr. Douglas Baker, our CFO, OptimizeRx Corp., 400 Water Street,
Suite 200 Rochester, MI 48307, by email at info@optimizerx.com, or by facsimile at (248) 453 - 5529. These documents are also
available free of charge through the Investors section on our website at
http://www.optimizerx.com
as soon as practicable
after such materials have been electronically filed with, or furnished to, the SEC.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13.
|
Other Expenses of Issuance and Distribution
|
SEC
Registration Fees(1)
|
|
$
|
1,711.88
|
|
Accounting
Fees and Expenses
*
|
|
|
5,000
|
|
Legal
Fees and Expenses
*
|
|
|
5,000
|
|
Miscellaneous
*
|
|
|
5,000
|
|
|
|
|
|
|
Total
|
|
$
|
16,711.88
|
|
(1) Previously paid.
* Estimates
We will bear our fees and expenses incurred
in connection with the registration of shares of Common Stock in connection with this offering. The Selling Shareholders will bear
all selling and other expenses that they incur in connection with their sale of shares of Common Stock pursuant to the prospectus
which is part of this registration statement.
Item 14.
|
Indemnification of Directors and Officers.
|
Our officers and directors are indemnified
as provided by the Nevada Revised Statutes and our bylaws.
Under the governing Nevada statutes, director
immunity from liability to a company or its shareholders for monetary liabilities applies automatically unless it is specifically
limited by a company's articles of incorporation. Our articles of incorporation do not contain any limiting language regarding
director immunity from liability. Excepted from this immunity are:
|
1.
|
a
willful failure to deal fairly with the company or its shareholders in connection with a matter in which the director has a material
conflict of interest;
|
|
2.
|
a
violation of criminal law (unless the director had reasonable cause to believe that his or her conduct was lawful or no reasonable
cause to believe that his or her conduct was unlawful);
|
|
3.
|
a
transaction from which the director derived an improper personal profit; and
|
Our bylaws provide that we will indemnify
our directors and officers to the fullest extent not prohibited by Nevada law; provided, however, that we may modify the extent
of such indemnification by individual contracts with our directors and officers; and, provided, further, that we shall not be required
to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such person unless:
|
1.
|
such
indemnification is expressly required to be made by law;
|
|
2.
|
the
proceeding was authorized by our Board of Directors;
|
|
3.
|
such
indemnification is provided by us, in our sole discretion, pursuant to the powers vested us under Nevada law; or;
|
|
4.
|
such
indemnification is required to be made pursuant to the bylaws.
|
Our bylaws provide that we will advance
to any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer,
of the company, or is or was serving at the request of the company as a director or executive officer of another company, partnership,
joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefore,
all expenses incurred by any director or officer in connection with such proceeding upon receipt of an undertaking by or on behalf
of such person to repay said amounts if it should be determined ultimately that such person is not entitled to be indemnified under
our bylaws or otherwise.
Our bylaws provide that no advance shall
be made by us to an officer of the company, except by reason of the fact that such officer is or was a director of the company
in which event this paragraph shall not apply, in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
if a determination is reasonably and promptly made: (a) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to the proceeding, or (b) if such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to the best interests of the company.
Item 15.
|
Recent Sales of Unregistered Securities.
|
In December 2017, we issued 6,250 shares
of restricted Common Stock to our outside Directors as part of our director compensation package for services rendered in Q4 2017.
In February 2018,
we granted 130,000 shares of Common Stock to officers and options to purchase 106,667 shares of Common Stock with an exercise
price of $4.20 to non-officers, both of which vest only if we achieve certain stretch revenue goals in either 2019 or 2020.
In March 2018, we issued 6,250 shares of
Common Stock to our independent directors in connection with our Director Compensation Plan. We also issued 100,000 shares of Common
Stock to a subsidiary of WPP, a shareholder of the Company, in payment of amounts due under a comarketing agreement.
In May 2018, we sold to accredited investors
an aggregate of 1,666,669 shares of our Common Stock, for gross proceeds of approximately $9,000,000.
These securities were issued pursuant to
Section 4(2) of the Securities Act and/or Rule 506 promulgated thereunder. The holders represented their intention to acquire the
securities for investment only and not with a view towards distribution. The investors were given adequate information about us
to make an informed investment decision. We did not engage in any general solicitation or advertising. We directed our transfer
agent to issue the stock certificates with the appropriate restrictive legend affixed to the restricted stock.
Exhibit
Number
|
|
Description
|
3.1
|
|
Articles of Incorporation of OptimizeRx Corporation (the “Company”)
1
|
3.2
|
|
Amended and Restated Bylaws of the Company
2
|
3.3
|
|
Certificate of Designation, filed on September 5, 2008 with the Secretary of State of the State of Nevada by the Company
1
|
3.4
|
|
Certificate of Designation, filed on June 3, 2010 with the Secretary of State of the State of Nevada by the Company
3
|
5.1
|
|
Opinion
of The Doney Law firm with Consent to use
13
|
10.1
|
|
Separation Agreement, dated September 20, 2013
4
|
10.2
|
|
Securities Purchase Agreement
5
|
10.3
|
|
Registration Rights Agreement
5
|
10.4
|
|
Investor Agreement
5
|
10.5
|
|
Warrant Agreement
6
|
10.6
|
|
Warrant Agreement
6
|
10.7
|
|
Stock Purchase Agreement, dated September 24, 2015
7
|
10.8
|
|
Investor Rights Agreement, dated September 24, 2015
7
|
10.9
|
|
Indemnity Agreement, dated September 24, 2015
7
|
10.10
|
|
Employment Agreement between the Company and James Brooks, dated December 4, 2015
8
|
10.11
|
|
Employment Agreement between the Company and William Febbo, dated February 12, 2016
9
|
10.12
|
|
Separation Agreement, Corporate Consulting Agreement and Confidentiality Agreement between the Company and David Harrell dated May 5, 2016
10
|
10.13
|
|
Employment Agreement with Brian Dillon, dated June 22, 2016
11
|
10.14
|
|
Employment Agreement with Douglas Baker, dated June 27, 2016
11
|
10.15
|
|
Employment Agreement with Terry Hamilton, dated June 27, 2016
11
|
10.16
|
|
Purchase Agreement, dated May 2, 2018
12
|
10.17
|
|
Registration Rights Agreement, dated May 2, 2018
12
|
21.1
|
|
List of Subsidiaries
1
|
23.1
|
|
Consent of KLJ & Associates**
|
23.2
|
|
Consent of Sadler, Gibb & Associates, LLC**
|
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 8-K, filed by the
Company with the Securities and Exchange Commission on June 11, 2010.
|
4
|
Incorporated by reference to the Form 8-K, filed by the
Company with the Securities and Exchange Commission on September 20, 2013.
|
5
|
Incorporated by reference to the Form 8-K, filed by the
Company with the Securities and Exchange Commission on March 18, 2014.
|
6
|
Incorporated by reference to the Form S-1/A filed by the
Company with the Securities and Exchange Commission on May 12, 2014.
|
7
|
Incorporated by reference to the Form 8-K, filed by the
Company with the Securities and Exchange Commission on September 30, 2015.
|
8
|
Incorporated by reference to the Form 8-K, filed by the
Company with the Securities and Exchange Commission on January 8, 2016.
|
9
|
Incorporated by reference to the Form 8-K, filed by the
Company with the Securities and Exchange Commission on February 19, 2016.
|
10
|
Incorporated by reference to the Form 10-Q, filed by the
Company with the Securities and Exchange Commission on May 9, 2016.
|
11
|
Incorporated by reference to the Form 8-K, filed by the
Company with the Securities and Exchange Commission on June 27, 2016.
|
12
|
Incorporated by reference
to the Form 10-Q, filed by the Company with the Securities and Exchange Commission on
May 2, 2018.
|
13
|
Incorporated
by reference to the Form S-1, filed by the Company with the Securities and Exchange Commission on May 22, 2018.
|
The registrant hereby undertakes:
(a)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
(i)
|
to include any prospectus required by Section 10(a)(3)
of the Securities Act;
|
(ii) to
reflect in the prospectus any facts or events arising after the effective date of this 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 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) to
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.
(b) That, for the
purpose of determining any liability under the Securities Act, 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.
(c) 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.
(d) That, for
the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant
is relying on Rule 430B (§230.430B of this chapter):
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) (§230.424(b)(3) of this chapter) shall be deemed to be part
of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement;
and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) (§230.424(b)(2), (b)(5), or (b)(7) of this chapter)
as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x) (§230.415(a)(1)(i), (vii), or (x) of this chapter) for the purpose of providing the information required by section
10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement 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 effective date, 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 effective date; or
(ii) If the registrant is subject to Rule 430C (§230.430C of this chapter), 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 (§230.430A of this chapter), 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 statement 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.
(e)
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 foregoing provisions, 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 of 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.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Rochester, State of Michigan on July 3, 2018.
OptimizeRx Corporation
|
|
|
|
|
By:
|
/s/ William Febbo
|
|
|
William Febbo
Chief Executive Officer,
Principal Executive Officer and Director
|
|
OptimizeRx Corporation
|
|
|
|
|
By:
|
/s/ Doug Baker
|
|
|
Doug Baker
Chief Financial Officer, Principal Financial Officer and Principal
Accounting Officer
|
|
POWER OF ATTORNEY
Pursuant to the requirements of the Securities
Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities
and on the dates indicated.
By:
|
/s/
William Febbo
|
|
|
William Febbo
|
|
Title:
|
Chief Executive Officer,
Principal Executive Officer and Director
|
|
Date:
|
July 3, 2018
|
|
|
|
|
By:
|
/s/
James Lang
|
|
|
James Lang
|
|
Title:
|
Chairman and Director
|
|
Date:
|
July 3, 2018
|
|
|
|
|
By:
|
/s/
Lynn Vos
|
|
|
Lynn Vos
|
|
Title:
|
Director
|
|
Date:
|
July 3, 2018
|
|
|
|
|
By:
|
/s/
Gus D. Halas
|
|
|
Gus D. Halas
|
|
Title:
|
Director
|
|
Date:
|
July 3, 2018
|
|
|
|
|
By:
|
/s/
Patrick Spangler
|
|
|
Patrick Spangler
|
|
Title:
|
Director
|
|
Date:
|
July 3, 2018
|
|
|
|
|
By:
|
/s/
Bryan Archambault
|
|
|
Bryan Archambault
|
|
Title:
|
Director
|
|
Date:
|
July 3, 2018
|
|
|
|
|
By:
|
/s/
Doug Baker
|
|
|
Doug Baker
|
|
Title:
|
Chief Financial Officer, Principal Financial
Officer and Principal Accounting Officer
|
|
Date:
|
July 3, 2018
|
|
II-5
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