Form 10-Q AUDIOEYE INC For: Mar 31

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

 

x

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended March 31, 2018

 

¨

TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from [                     ] to [                     ]

 

Commission file number 333-177463 

 

 

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 East Williams Circle, Suite 750, Tucson, Arizona		85711
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code:  866-331-5324

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the last 90 days. Yes x   No ¨

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x     No ¨

 

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 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	x
Emerging growth company	¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x

 

As of May 15, 2018, 161,181,095 shares of the registrant’s common stock were issued and outstanding

 

 

 

		Page
PART I	FINANCIAL INFORMATION
Item 1.	Financial Statements	1
	Consolidated Balance Sheets as of March 31, 2018 and December 31, 2017 (unaudited)	2
	Consolidated Statements of Operations for the three months ended March 31, 2018 and 2017 (unaudited)	3
	Consolidated Statement of Stockholders’ Equity for three months ended March 31, 2018 (unaudited)	4
	Consolidated Statements of Cash Flows for the three months ended March 31, 2018 and 2017 (unaudited)	5
	Notes to Consolidated Financial Statements (unaudited)	6
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	15
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	20
Item 4.	Controls and Procedures	20
PART II	OTHER INFORMATION
Item 1.	Legal Proceedings	20
Item 1A.	Risk Factors	21
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	21
Item 3.	Defaults Upon Senior Securities	21
Item 4.	Mine Safety Disclosures	21
Item 5.	Other Information	21
Item 6.	Exhibits	22
SIGNATURES		23

 

 

PART I — FINANCIAL INFORMATION

 

Item 1.  Financial Statements

 

The financial information set forth below with respect to the financial statements as of March 31, 2018 and 2017 and for the three month periods ended March 31, 2018 and 2017 is unaudited. This financial information, in the opinion of our management, includes all adjustments consisting of normal recurring entries necessary for the fair presentation of such data. The results of operations for the three month period ended March 31, 2018 are not necessarily indicative of results to be expected for any subsequent period. Our fiscal year end is December 31.

 

 

AUDIOEYE, INC.

CONSOLIDATED BALANCE SHEETS

 

		March 31,				December 31,
		2018				2017
ASSETS
Current assets:
Cash		$	1,276,997			$	1,960,430
Accounts receivable			137,329				105,817
Marketable securities, held in related party			978				750
Deferred costs, short term			43,932				-
Prepaid expenses and other current assets			48,483				67,406
Total current assets			1,507,719				2,134,403
Property and equipment, net			41,570				34,994
Deferred costs, long term			56,574				-
Intangible assets, net			2,116,940				2,164,463
Goodwill			700,528				700,528
Total assets		$	4,423,331			$	5,034,388
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses		$	56,674			$	82,628
Related party payables			14,467				23,535
Derivative liabilities			-				2,984,010
Deferred rent			3,319				9,402
Deferred revenue			1,374,218				1,233,754
Total current liabilities			1,448,678				4,333,329
Long term liabilities:
Deferred rent			9,787				5,048
Total liabilities			1,458,465				4,338,377
Stockholders' equity:
Preferred stock, $0.00001 par value, 10,000,000 shares authorized, 110,000 shares issued and outstanding as of March 31, 2018 and December 31, 2017			1				1
Common stock, $0.00001 par value, 250,000,000 shares authorized, 161,664,077 shares issued and outstanding as of March 31, 2018 and December 31, 2017			1,617				1,617
Additional paid in capital			41,249,086				40,120,293
Accumulated deficit			(38,285,838	)			(39,425,900	)
Total stockholders' equity			2,964,866				696,011
Total liabilities and stockholders' equity		$	4,423,331			$	5,034,388

 

See Notes to Unaudited Consolidated Financial Statements

 

 

AUDIOEYE, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS

(unaudited)

 

		Three months ended March 31,
		2018				2017
Revenues		$	1,149,342			$	434,507
Cost of revenue			587,464				341,042
Gross profit			561,878				93,465
Operating expenses:
Selling and marketing			610,662				279,727
Research and development			49,667				44,702
General and administrative			936,960				737,681
Amortization and depreciation			127,665				145,488
Total operating expenses			1,724,954				1,207,598
Operating loss			(1,163,076	)			(1,114,133	)
Other income (expense):
Unrealized gain on derivative liabilities			-				310,773
Unrealized gain on marketable securities			228				-
Interest income			237				164
Total other income			465				310,937
Net loss			(1,162,611	)			(803,196	)
Dividends on Series A Convertible preferred stock			(13,750	)			(20,000	)
Net loss available to common stockholders		$	(1,176,361	)		$	(823,196	)
Net loss per common share-basic and diluted		$	(0.01	)		$	(0.01	)
Weighted average common shares outstanding-basic and diluted			161,664,077				111,884,024

 

See Notes to Unaudited Consolidated Financial Statements

 

 

AUDIOEYE, INC.

CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY

THREE MONTHS ENDED MARCH 31, 2018

(unaudited)

 

																		Additional
		Common stock								Preferred stock								Paid in				Accumulated
		Shares				Amount				Shares				Amount				Capital				Deficit				Total
Balance, December 31, 2017			161,664,077			$	1,617				110,000			$	1			$	40,120,293			$	(39,425,900	)		$	696,011
Effect of adoption of Accounting Codification Standard 2014-09, Revenue from Contracts with Customers			-				-				-				-				-				80,153				80,153
Reclassify derivative liability to equity upon adoption of Accounting Codification Standard 2017-11, Earnings Per Share			-				-				-				-				761,490				2,222,520				2,984,010
Restricted stock units, warrants and options issued for services			-				-				-				-				367,303				-				367,303
Net loss			-				-				-				-				-				(1,162,611	)			(1,162,611	)
Balance, March 31, 2018			161,664,077			$	1,617				110,000			$	1			$	41,249,086			$	(38,285,838	)		$	2,964,866

 

See Notes to Unaudited Consolidated Financial Statements

 

 

AUDIOEYE, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(unaudited)

 

		Three months ended March 31,
		2018				2017
CASH FLOWS FROM OPERATING ACTIVITIES:
Net (loss)		$	(1,162,611	)		$	(803,196	)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization			127,665				145,488
Option, warrant, RSU and PSU expense			367,303				211,464
Stock issued for services			-				17,875
Unrealized gain on marketable securities			(228	)			-
Change in fair value of derivative liabilities			-				(310,773	)
Amortization of deferred commission			9,974				-
Changes in operating assets and liabilities:
Accounts receivable			(31,512	)			(12,954	)
Deferred costs			(30,327	)			-
Other current assets			18,923				5,871
Accounts payable and accruals			(25,954	)			11,853
Deferred rent			(1,344	)			(385	)
Deferred revenue			140,464				69,959
Related party payables			(9,068	)			51,750
Net cash (used in) operating activities			(596,715	)			(613,048	)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of equipment			(10,893	)			(5,736	)
Software development costs			(75,825	)			(50,970	)
Net cash (used in) investing activities			(86,718	)			(56,706	)
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock and warrants for cash			-				50,000
Repayments of notes payable			-				(6,000	)
Net cash provided by financing activities			-				44,000
Net (decrease) in cash			(683,433	)			(625,754	)
Cash-beginning of period			1,960,430				1,409,418
Cash-end of period		$	1,276,997			$	783,664
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Interest paid		$	-			$	-
Income taxes paid		$	-			$	-
Non cash investing and financing activities:
Reclassify fair value of liability warrants from equity to liability upon issuance		$	-			$	6,062
Restricted stock units issued in payment of accrued compensation		$	-			$	58,333
Reclassify fair value of warrant liabilities to equity upon adoption of ASU 2017-11		$	2,984,010			$	-
Effect of adoption of Accounting Codification Standard 2014-09, Revenue from Contracts with Customers		$	80,153			$	-

 

 

See Notes to Unaudited Consolidated Financial Statements

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

NOTE 1: ORGANIZATION AND BASIS OF PRESENTATION

 

The accompanying unaudited interim financial statements of AudioEye, Inc. and its wholly-owned subsidiary (collectively, the “Company”) have been prepared in accordance with accounting principles generally accepted in the United States of America and the rules of the Securities and Exchange Commission, and should be read in conjunction with the audited financial statements and notes thereto contained in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on April 2, 2018.

 

In the opinion of management, all adjustments, consisting of normal recurring adjustments, necessary for a fair presentation of financial position and the results of operations for the interim periods presented have been reflected herein. The results of operations for the interim periods are not necessarily indicative of the results to be expected for the full year. Notes to the financial statements that would substantially duplicate the disclosures contained in the audited financial statements for the year ended December 31, 2017 as reported in the Company’s Annual Report on Form 10-K have been omitted.

 

Corporate Information and Background

 

AudioEye, Inc. was formed as a Delaware corporation on May 20, 2005. The Company focuses on providing its customers with the most complete and inclusive web accessibility solution available. The Company’s suite of technologies allows its customers to provide their site visitors with an enhanced web experience. When implemented, the Company believes its solutions offer businesses the opportunity to reach more customers, improve brand image, and build additional brand loyalty. In addition, the Company’s solutions provide organizations with the ability to comply with internationally accepted web content accessibility guidelines (WCAG) as well as United States, Canadian and United Kingdom accessibility laws.

 

Revenue Recognition

 

The Company recognizes revenue when delivery of the promised goods or services is transferred to its customers, in an amount that reflects the consideration that the Company expects to receive in exchange for those goods or services.

 

Certain Software as a Service (SaaS) are prepared and invoiced on an annual basis. Any funds received for services not provided yet are held in deferred revenue, and are recorded as revenue when earned.

 

The Company had one major customer including their affiliates which generated approximately 13% of its revenue in the three months ended March 31, 2018.

 

At March 31, 2018, the Company had one customer representing 36% of the outstanding accounts receivable.

 

Effective January 1, 2018, the Company adopted ASU 2014-09, Revenue from Contracts with Customers (Topic 606), which supersedes the revenue recognition requirements in Topic 605, Revenue Recognition, and most industry-specific revenue recognition guidance throughout the Industry Topics of the Accounting Standards Codification. The updated guidance states that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The guidance also provides for additional disclosures with respect to revenues and cash flows arising from contracts with customers. The Company adopted the standard using the modified retrospective approach effective January 1, 2018.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

The most significant impact of the standard relates to capitalizing costs to acquire contracts, which have historically been expensed as incurred. As of December 31, 2017, the Company’s sales commission plans have included multiple payments, including initial payments in the period a customer contract is obtained and deferred payments over the life of the contract as future payments are collected from the customers. Under the standard, only the initial payment is subject to capitalization as the deferred payments require a substantive performance condition of the employee. These initial commission payments are now capitalized in the period a customer contract is obtained and payment is received; and will be amortized consistent with the transfer of the goods or services to the customer over the expected period of benefit. The expected period of benefit is the contract term, except when the commission payment is expected to provide economic benefit to the Company for a period longer than the contract term, such as for new customer or incremental sales where renewals are expected and renewal commissions are not commensurate with initial commissions. Such commissions are amortized over the greater of contract term or technological obsolescence period when the underlying contracted products are technology-based, such as for the SaaS-based platforms, or the expected customer relationship period when the underlying contracted products are not technology-based, such as for patient experience survey products. Upon adoption of Topic 606, the Company reclassified $80,153 from equity previously expensed commissions to deferred assets effective January 1, 2018. There were significant changes in contract liabilities balances during the three months ended March 31, 2018. Deferred Revenue increased to $1,374,218 at March 31, 2018 compared to $1,233,754 at December 31, 2017 due to cash received of $997,467 less revenue recognized of $857,003. 

 

Effects of adoption of ASU 2014-09 are as follows:

 

		At January 1, 2018:
		Prior to adoption of ASU 2014-09				Subsequent to adoption of ASU 2014-09				Change
Accumulated deficit		$	(39,425,900	)		$	(39,345,747	)		$	(80,153	)
Deferred commission cost		$	-			$	80,153			$	80,153

  

Use of Estimates

 

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include the fair value of the Company’s stock, stock-based compensation, debt discounts and the valuation allowance related to deferred tax assets. Actual results may differ from these estimates.

 

Stock based compensation

 

The Company measures the cost of services received in exchange for an award of equity instruments based on the fair value of the award. For employees and directors, the fair value of the award is measured on the grant date and for non-employees the fair value of the award is generally re-measured on vesting dates and interim financial reporting dates until the service period is complete. The fair value amount is then recognized over the period during which services are required to be provided in exchange for the award, usually the vesting period. Stock-based compensation expense is recorded by the Company in the same expense classifications in the consolidated statements of operations, as if such amounts were paid in cash.

 

Derivative Instrument Liability

 

The Company accounts for derivative instruments in accordance with ASC 815, which establishes accounting and reporting standards for derivative instruments and hedging activities, including certain derivative instruments embedded in other financial instruments or contracts and requires recognition of all derivatives on the balance sheet at fair value, regardless of hedging relationship designation. Accounting for changes in fair value of the derivative instruments depends on whether the derivatives qualify as hedging relationships and the types of relationships designated are based on the exposures hedged. At March 31, 2018 and December 31, 2017, the Company did not have any derivative instruments that were designated as hedges.

 

In 2017 and prior and in accordance with ASC 815, certain warrants with anti-dilutive provisions were deemed to be derivatives. The value of the derivative instrument will fluctuate with the price of the Company’s common stock and is recorded as a current liability on the Company’s Consolidated Balance Sheet. The change in the value of the liability is recorded as “unrealized gain (loss) on derivative liability” on the Consolidated Statements of Operations.

 

Effective January 1, 2018, the Company adopted Accounting Standards Update (“ASU”) No. 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities from Equity (Topic 480), Derivatives and Hedging (Topic 815). The amendments in Part I of this Update change the classification analysis of certain equity-linked financial instruments (or embedded features) with down round features.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

When determining whether certain financial instruments should be classified as liabilities or equity instruments, a down round feature no longer precludes equity classification when assessing whether the instrument is indexed to an entity’s own stock. The amendments also clarify existing disclosure requirements for equity-classified instruments. As a result, a freestanding equity-linked financial instrument (or embedded conversion option) no longer would be accounted for as a derivative liability at fair value as a result of the existence of a down round feature. For freestanding equity classified financial instruments, the amendments require entities that present earnings per share (EPS) in accordance with Topic 260 to recognize the effect of the down round feature when it is triggered. That effect is treated as a dividend and as a reduction of income available to common shareholders in basic EPS. Convertible instruments with embedded conversion options that have down round features are now subject to the specialized guidance for contingent beneficial conversion features (in Subtopic 470-20, Debt—Debt with Conversion and Other Options), including related EPS guidance (in Topic 260). The amendments in Part II of this Update recharacterize the indefinite deferral of certain provisions of Topic 480 that now are presented as pending content in the Codification, to a scope exception.

 

On January 1, 2018, the Company adopted ASU 2017-11 by electing the modified retrospective method to the outstanding financial instruments with a down round feature by means of a cumulative-effect adjustment to the statement of financial position as of the beginning of the fiscal year. Accordingly, the Company reclassified the fair value of the reset provisions embedded in previously issued warrants from liability to equity (accumulated deficit) in aggregate of $2,984,010.

 

Effects of adoption of ASU 2017-11 modified retrospective are as follows:

 

		At January 1, 2018:
		Prior to adoption of ASU 2014-09				Subsequent to adoption of ASU 2014-09				Change
Derivative liabilities		$	2,984,010			$	-			$	(2,984,010	)
Additional paid in capital			40,120,293				40,881,783				761,490
Accumulated deficit		$	(39,425,900	)		$	(37,203,380	)		$	2,222,520

  

Earnings (Loss) Per Share

 

Basic earnings (loss) per share are computed by dividing net income, or loss, by the weighted average number of shares of common stock outstanding for the period. Diluted earnings (loss) per share and basic earnings (loss) per share are not included in the net loss per share computation until the Company has Net Income. Diluted loss per share including the dilutive effects of common stock equivalents on an “as if converted” basis would reduce the loss per share and thereby be antidilutive.

 

Potentially dilutive securities excluded from the computation of basic and diluted net earnings (loss) per share are as follows:

 

		March 31, 2018				March 31, 2017
Preferred stock			7,186,314				6,872,745
Options to purchase common stock			26,454,993				25,931,207
Warrants to purchase common stock			44,194,663				63,723,041
Restricted stock units			3,908,471				1,654,917
Totals			81,744,441				98,181,910

 

Fair Value Measurements

 

Fair value is an estimate of the exit price, representing the amount that would be received to upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants (i.e., the exit price at the measurement date). Fair value measurements are not adjusted for transaction cost. Fair value measurement under generally accepted accounting principles provides for use of a fair value hierarchy that prioritizes inputs to valuation techniques used to measure fair value into three levels:

 

Level 1: Unadjusted quoted prices in active markets for identical assets or liabilities.

 

Level 2: Inputs other than quoted market prices that are observable, either directly or indirectly, and reasonably available. Observable inputs reflect the assumptions market participants would use in pricing the asset or liability and are developed based on market data obtained from sources independent of the Company.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

Level 3: Unobservable inputs reflect the assumptions that the Company develops based on available information about what market participants would use in valuing the asset or liability.

 

An asset or liability’s level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Availability of observable inputs can vary and is affected by a variety of factors. The Company uses judgment in determining fair value of assets and liabilities and Level 3 assets and liabilities involve greater judgment than Level 1 and Level 2 assets or liabilities.

 

The following are the Company’s assets and liabilities, measured at fair value on a recurring basis, as of March 31, 2018 and December 31, 2017:

 

						Fair Value
		Fair Value				Hierarchy
Assets
Marketable securities, March 31, 2018		$	978				Level 1
Marketable securities, December 31, 2017		$	750				Level 1
Liabilities
Derivative Liability ,March 31, 2018		$	-				Level 3
Derivative Liability , December 31, 2017		$	2,984,010				Level 3

 

Recent Accounting Pronouncements

 

There are various updates recently issued, most of which represented technical corrections to the accounting literature or application to specific industries and are not expected to a have a material impact on the Company's financial position, results of operations or cash flows.

 

NOTE 2 – MANAGEMENT’S LIQUIDITY PLANS

 

As of March 31, 2018, the Company had cash of $1,276,997 and a working capital of $59,041. In addition, the Company used actual net cash in operations of $596,715 during the three months ended March 31, 2018. The Company has incurred net losses since inception. These conditions raise substantial doubt about the Company’s ability to continue as a going concern.

 

The Company’s primary source of operating funds has been from revenue generated from sales and cash proceeds from the sale of common stock and the issuance of convertible and other debt. It is anticipated that the Company has cash sufficient to fund operations through October 2018.

 

The Company expects that cash used in operations will decrease significantly over the next several years as the Company executes its business plan. In the event that the Company is not able to fully achieve its plan, the Company may need to raise additional funds through equity or debt financing. If the Company is unsuccessful in raising additional financing, it will need to reduce costs and operations in the future. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

NOTE 3 — PROPERTY AND EQUIPMENT

 

Property and equipment as of March 31, 2018 and December 31, 2017 is summarized as follows:

 

		March 31, 2018				December 31, 2017
Computer equipment		$	72,570			$	63,517
Furniture and fixtures			4,968				3,128
Total			77,538				66,645
Less accumulated depreciation			(35,968	)			(31,651	)
Property and equipment, net		$	41,570			$	34,994

 

Property and equipment are stated at cost and depreciated using the straight-line method over their estimated useful life of 3 years. When retired or otherwise disposed, the related carrying value and accumulated depreciation are removed from the respective accounts and the net difference less any amount realized from disposition, is reflected in earnings.

 

The Company spent $10,893 and $5,736 in purchase of equipment during three months ended March 31, 2018 and 2017, respectively. Depreciation expense was $4,317 and $447 for the three months ended March 31, 2018 and 2017, respectively.

 

NOTE 4 — INTANGIBLE ASSETS

 

For the three months ended March 31, 2018 and 2017, the Company invested in Software development costs in the amounts of $75,825 and $50,970 respectively.

 

Patents, technology and other intangibles with contractual terms are generally amortized over their estimated useful lives of ten years. When certain events or changes in operating conditions occur, an impairment assessment is performed and lives of intangible assets with determinable lives may be adjusted.

 

Software development costs are amortized over their estimated useful life of three years.

 

Prior to any impairment adjustment, intangible assets consisted of the following:

 

		March 31, 2018				December 31, 2017
Patents		$	3,697,709			$	3,697,709
Capitalized software development			1,081,194				1,005,369
Accumulated amortization			(2,661,963	)			(2,538,615	)
Intangible assets, net		$	2,116,940			$	2,164,463

 

Amortization expense for patents totaled $87,026 and $91,582 for the three months ended March 31, 2018 and 2017, respectively. Amortization expense for software development totaled $36,322 and $53,459 for the three months ended March 31, 2018 and 2017, respectively.

 

Total amortization expense totaled $123,348 and $145,041 for the three months ended March 31, 2018 and 2017, respectively.

 

NOTE 5 — DEFERRED COSTS

 

Effective January 1, 2018, the Company capitalizes initial and renewal sales commission payments in the period a customer contract is obtained and payment is received; and is amortized consistent with the transfer of the goods or services to the customer over the expected period of benefit. The expected period of benefit is the contract term, except when the commission payment is expected to provide economic benefit to the Company for a period longer than the contract term, such as for new customer or incremental sales where renewals are expected and renewal commissions are not commensurate with initial commissions.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

Such commissions are amortized over the greater of contract term or technological obsolescence period when the underlying contracted products are technology-based, such as for the SaaS-based platforms, or the expected customer relationship period when the underlying contracted products are not technology-based, such as for patient experience survey products.

 

During the three months ended March 31, 2018, the Company deferred an aggregate $30,327 commissions paid and reclassified from equity $80,153 previously paid and expensed commissions. Amortization of deferred costs for the three months ended March 31, 2018 was $9,974.

 

NOTE 6 — RELATED PARTY TRANSACTIONS

 

Dr. Carr Bettis, Executive Chairman and Chairman of Board of Directors

 

As of March 31, 2018 and December 31, 2017, the Company owed Dr. Bettis $5,992 in accrued salary. In addition, AudioEye sub-leases office space in Scottsdale, Arizona for certain Company employees, including Todd Bankofier, CEO, from Verus Analytics, Inc, a company in which Dr. Bettis has a controlling interest. The Company had taken on more employees and space, the sub-lease amount increased from $500 per month to $3,502 per month in 2017 totaling $10,507 and $1,500 for the three months ended March 31, 2018 and 2017, respectively. The amount of $0 was due as of March 31, 2018 and December 31, 2017. At March 31, 2018 and December 31, 2017, an estimated $8,475 and $14,000 was due and accrued to Dr. Bettis for unreimbursed travel related expenses, respectively.

 

Sean Bradley, President, Chief Technology Officer, and Secretary

 

As of March 31, 2018 and December 31, 2017 and 2016, the Company owed Sean Bradley $0 and $3,543 in accrued salary, respectively.

 

NOTE 7 — STOCKHOLDERS’ EQUITY

 

Preferred stock

 

As of March 31, 2018 and December 31, 2017, the Company had 110,000 shares of Series A Convertible Preferred Stock, issued at $10 per share, paying a 5% cumulative annual dividend and convertible for common stock at a price of $0.1754 per share. For the three months ended March 31, 2018, preferred shareholders earned, but were not paid $13,750 in annual dividends, or equivalent to 78,392 common shares based on a conversion price of $0.1754 per share. As of March 31, 2018 and December 31, 2017, cumulative and unpaid dividends were $160,668 and $146,918, or equivalent to 916,009 and 837,617 common shares based on a conversion price of $0.1754 per share, respectively.

 

Common stock

 

As of March 31, 2018 and December 31, 2017, the Company had 161,664,077 shares of common stock issued and outstanding.

 

Options

 

As of March 31, 2018 and December 31, 2017, the Company has outstanding options to purchase 26,454,993 and 25,095,557 shares of common stock, respectively.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

																		Intrinsic
										Wtd Avg.								Value
		Number of				Wtd Avg.				Remaining								of
		Options				Exercise Price				Term				Exercisable				Options
Outstanding at December 31, 2017			25,095,557			$	.019				2.64				22,276,224			$	1,356,188
Granted			1,509,436				0.26				5.00								-
Forfeited/Expired			(150,000	)			0.50
Outstanding at March 31, 2018			26,454,993			$	0.19				2.75				23,082,687			$	2,979,412

 

On March 9, 2018, the Company granted an aggregate of 1,509,436 options to employees as compensation for services rendered. The options are exercisable at $0.258 per share for five years with (i) 946,936 options vesting 50% at the first day of each month beginning January 1, 2018 through December 1, 2018, 25% vesting at the first day of each month from January 1, 2019 through December 1, 2019 and 25% vesting at the first day of each month beginning January 1, 2020 through December 1, 2020; (ii) 312,500 options vesting 50% on January 1, 2018, 50% vesting at each month beginning on January 1, 2019 for 24 months; and (iii) 250,000 options fully vesting on January 1, 2018. The exercise price was determined using the 10-day average closing price beginning with the closing price on January 9, 2018. The value on the grant date of the options was $298,914.

 

Option grants during the three months ended March 31, 2018 were valued using the Black-Scholes pricing model. Significant assumptions used in the valuation include expected term of 2.50 to 3.50 years, expected volatility of 163.85%, risk free interest rate of 2.45% to 2.65%, and expected dividend yield of 0%.

 

For the three months ended March 31, 2018 and 2017, total stock compensation expense related to the options totaled $145,046 and $167,414, respectively.

 

The outstanding unamortized stock compensation expense related to options was $265,865 (which will be recognized through December 2020) as of March 31, 2018.

 

Warrants

 

Below is a table summarizing the Company’s outstanding warrants as of March 31, 2018 and December 31, 2017:

 

														Intrinsic
										Wtd Avg.				Value
		Number of				Wtd Avg.				Remaining				of
		Warrants				Exercise Price				Term				Warrants
Outstanding at December 31, 2016			47,997,335			$	0.20				2.61			$	1,656,083
Granted			-
Exercised			-
Forfeited/Expired			(3,802,672	)			0.26
Outstanding at September 30, 2017			44,194,663			$	0.19				2.57			$	4,650,064

 

For the three months ended March 31, 2018 and 2017, the Company has incurred warrant-based expense of $1,393 and $44,050, respectively. The outstanding unamortized stock compensation expense related to warrants was $0.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

Restricted stock units (“RSU”)

 

The following table summarizes the restricted stock unit activity for the three months ended March 31, 2018:

 

Restricted stock units issued as of January 1, 2018			3,908,471
Granted			958,333
Total Restricted stock units issued at March 31, 2018			4,866,804
Vested at March 31, 2018			2,376,804
Unvested restricted stock units as of March 31, 2018			2,490,000

 

On March 27, 2018, the Company granted 958,333 RSUs for services provided. 500,000 of such RSUs began vesting May 1, 2018, and will vest each calendar month at a rate of 41,666 RSUs per month except the last month ending April 1, 2019 whereby 41,674 RSUs would vest provided that services are not terminated by the Company or the grantee. 458,333 RSU’s vested immediately. The settlement date for such RSUs is (i) April 1, 2025 or (ii) the date on which the Company undergoes a change of control during the seven-year term of the award. The fair value of the RSU’s at grant date was $247,250.

 

For the three months ended March 31, 2018 and 2017, the Company has incurred RSU-based expense of $220,864 and $0, respectively. The outstanding unamortized stock compensation expense related to RSUs was $179,563 (which will be recognized through April 2019) as of March 31, 2018.

 

NOTE 8 — COMMITMENTS AND CONTINGENCIES

 

Litigation

 

On January 23, 2017, the court granted preliminary approval of the settlement pursuant to the terms set forth in the Stipulation of Settlement, provisionally certified a settlement class of shareholders, and directed plaintiffs' counsel to provide notice to that class. The Court held a Settlement Hearing May 8, 2017 to consider any objections to the Settlement that might be raised by settlement class members, to consider plaintiffs’ counsel's application for an award of fees and costs, and to determine whether the Order and Final Judgment as provided under the Stipulation of Settlement should be entered, dismissing the case with prejudice. On May 8, 2017, this Court granted final approval to the settlement of the securities class action brought by Lead Plaintiffs, individually and on behalf of all others similarly situated. On February 9, 2018, the Court authorized distribution of the Net Settlement Fund and to approved the proposed modified plan of allocation.

 

On May 16, 2016, a shareholder derivative complaint entitled LiPoChing, Derivatively and on Behalf of AudioEye, Inc., v. Bradley, et al., was filed in the United States District Court for the District of Arizona. As a derivative complaint, the plaintiff-shareholder purported to act on behalf of the Company against the Named Individuals. The Company was named as a nominal defendant. The complaint asserted causes of action including breach of fiduciary duty and others, arising from the Company’s restatement of its financial results for the first three quarters of 2014. The complaint sought, among other relief, compensatory damages, restitution and attorneys’ fees. In October 2016, the Company and Named Defendants filed a motion to dismiss. In response, the Plaintiff voluntarily dismissed the complaint without prejudice. Plaintiff’s counsel subsequently submitted a demand to the Company’s Board of Directors, to investigate the circumstances surrounding restatement of its financial results for the first three quarters of 2014. The Board has formed an Independent Director lead special litigation committee to evaluate the demand and make a recommendation to the Board. No determination has been made at this time.

 

On July 26, 2016, a shareholder derivative complaint entitled Denese M. Hebert, derivatively on Behalf of Nominal Defendant AudioEye, Inc., v. Bradley, et al., was filed in the State of Arizona Superior Court for Pima County. The complaint generally asserted causes of action related to the Company’s restatement of its financial statements for the first three fiscal quarters of 2014. As a derivative complaint, the plaintiff-shareholder purported to act on behalf of the Company against the Named Individuals. The Company was named as a nominal defendant. The defendants filed a motion to dismiss, which the Court granted on May 8, 2017, while also denying Plaintiff’s request for leave to amend the complaint. As in the above matter, after this matter was dismissed Plaintiff’s counsel subsequently submitted a demand to the Company’s Board of Directors, to investigate the circumstances surrounding restatement of its financial results for the first three quarters of 2014.

 

 

AUDIOEYE, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2018 (Unaudited)

 

While the Company believes that its legal defense costs may be reimbursed by the Company’s insurance carrier, no reasonable estimate of the outcome of the litigation, the related legal fees, or the impact on the financial results of the Company can be made as of the date of this statement. This demand is being evaluated together with the above demand by the Board’s Independent Director lead special litigation committee. No determination has been made at this time.

 

We may become involved in various other routine disputes and allegations incidental to our business operations. While it is not possible to determine the ultimate disposition of these matters, our management believes that the resolution of any such matters, should they arise, is not likely to have a material adverse effect on our financial position or results of operations.

 

NOTE 9 — SUBSEQUENT EVENTS

 

Equity transactions

 

On April 12, 2018, the Company granted 150,000 options to purchase the Company’s common stock for services at an exercise price of $0.248 per share for five years with 50,000 options vesting immediately and 25,000 options vesting every 90 days thereafter..

 

In March 2018, two individuals (the “Holders”) holding warrants to purchase an aggregate of 3,188,079 shares of the Company’s Common Stock (the “Warrants”) each delivered a Notice of Cashless Exercise (each, a "Notice") to the Company prior to the March 19, 2018 expiration of the Warrants. The Notices were technically deficient with respect to the proper exercise procedure required by the Warrants. However, the Company agreed to waive the deficiency and permit the cashless exercise of the Warrants, which resulted in the issuance of an aggregate of 146,018 shares of the Company’s Common Stock to the Holders in April 2018. 

 

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following Management’s Discussion and Analysis of Financial Condition and Results of Operations or MD&A, should be read in conjunction with our consolidated financial statements and related notes in Part I, Item 1 of this report.

 

As used in this quarterly report, the terms “we,” “us,” “our” and similar references refer to AudioEye, Inc. and our wholly-owned subsidiary, unless otherwise indicated.

 

Cautionary Note Regarding Forward-Looking Statements

 

Any statements in this Quarterly Report on Form 10-Q about our expectations, beliefs, plans, objectives, prospects, financial condition, assumptions or future events or performance are not historical facts and are “forward-looking statements” as that term is defined under the federal securities laws. These statements are often, but not always, made through the use of words or phrases such as “believe”, “anticipate”, “should”, “intend”, “plan”, “will”, “expects”, “estimates”, “projects”, “positioned”, “strategy”, “outlook” and similar words. You should read the statements that contain these types of words carefully. Such forward-looking statements are subject to a number of risks, uncertainties and other factors that could cause actual results to differ materially from what is expressed or implied in such forward-looking statements. There may be events in the future that we are not able to predict accurately or over which we have no control. Potential risks and uncertainties include, but are not limited to, those discussed in “Part I, Item 1A. Risk Factors” in our Annual Report filed on Form 10-K for the year ended December 31, 2017. We urge you not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. We do not undertake any obligation to release publicly any revisions to such forward-looking statements to reflect events or uncertainties after the date hereof or to reflect the occurrence of unanticipated events.

 

Overview

 

AudioEye is a marketplace leader providing web accessibility solutions for our clients’ customers through our Ally Platform Products. Our technology advances accessibility with patented technology solutions that reduce barriers, expand access for individuals with disabilities, and enhance the user experience for a broader audience of users. When implemented, we believe that our solutions offer businesses the opportunity to reach more customers, improve brand image, and build additional brand loyalty.  In addition, our solutions help organizations comply with internationally accepted Web Content Accessibility Guidelines (WCAG) as well as US, Canadian, Australian, and United Kingdom accessibility laws.

 

We generate revenues through the sale of subscriptions of our software as a service (SaaS) technology platform, called the AudioEye Ally Platform, to website owners, publishers, developers, and operators and through the delivery of managed services combined with the implementation of the AudioEye solution. Our solutions have been adopted by some of the largest and most influential companies in the world. Our customers span disparate industries and target market verticals, which encompass (but are not limited to) the following categories: human resources, finance, transportation, media, and education. Government agencies have also integrated our software in their digital platforms.

 

The AudioEye Solution

 

AudioEye uses proprietary technology and development tools to offer web accessibility solutions that offer significant savings in time and money relative to traditional solutions. Our compliance solutions focus on rapid remediation of the most important accessibility issues, followed by in-depth analysis identifying and addressing a more comprehensive compliance program. Our technology was built to not only provide users with a cloud-based assistive toolset that gets embedded and made freely available to users within our client websites, but to also improve the code in a way that optimizes the user experience for users of existing third-party assistive technologies, such as screen readers.

 

 

Intellectual Property

 

Our technology development was initiated at the University of Arizona Science & Technology Park in Tucson, Arizona. In 2006, we received technology development venture funding from the Maryland Technology Development Corporation (TEDCO), which contributed to the development of our platform strategy. Beginning in 2009, we engaged in a multi-year technology development program with the Eller College of Management’s Department of Management Information Systems at the University of Arizona.  In connection with our proprietary technology, our company has been issued a number of U.S. patents in two distinct patent families.  Today, an experienced team of in-house engineers, designers, and developers in our Atlanta, GA, and Tucson, AZ, offices develop the Company’s technology & software and are actively engaged in the expansion of the AudioEye IP Portfolio.

 

Our patented technology was a 2013 Edison Gold Award winner for innovation in the category of “Quality of Life.”

 

Our intellectual property is primarily comprised of trade secrets, trademarks, issued and pending patents, copyrights and technological innovation. We have a patent portfolio comprised of six patents issued in the United States, we have received a notice of allowance from the U.S. Patent and Trademark Office for a seventh patent, and we have several additional patents that are either pending or are being prepared for filing in the United States and internationally.

 

Our current patented invention relates to a server-side method and apparatus that enables users to audibly navigate websites and hear high-quality streaming audio narration and descriptions of websites.  This patented invention involves creating an audio-enabled web experience by utilizing voice talent and automated text-to-speech conversion methods to read and describe web content. It involves the creation of audio files for each section within a website, and then assigning a hierarchy and navigation system in line with the website design.  To implement the system, a script is installed across the pages of the website and, when loaded, it plays an audible tone upon a user’s visit indicating that the website is enhanced with our proprietary technology.  Upon hearing the tone, a user presses a key on the keyboard to enter the audible website.  Audible narration is played through the user’s computer, reading text and describing non-text information, such as images.  The narration includes menus for navigating the site which have a hierarchy in line that of the original website.  Users navigate the website menus and move from webpage to webpage by making keystrokes or using a mouse.

 

Our current portfolio has established a foundation for building unique technology solutions that contribute to the way in which we differentiate ourselves from other competitors in the B2B Web Accessibility marketplace. We plan to continue to invest in research and development, and expand our portfolio of proprietary intellectual property.

 

Our Annual Report filed on Form 10-K for the year ended December 31, 2017 provides additional information about our business and operations.

 

Results of Operations

 

Our consolidated financial statements are stated in United States Dollars and are prepared in accordance with United States Generally Accepted Accounting Principles (“GAAP”). The discussion of the results of our operations compares the three months ended March 31, 2018 with the three months ended March 310, 2017 and are not necessarily indicative of the results which may be expected for any subsequent period.  Our prospects should be considered in light of the risks, expenses and difficulties encountered by companies in similar positions.  We may not be successful in addressing these risks and difficulties.

 

 

Comparative for the Three Months ended March 31, 2018 and March 31, 2017

 

Results of Operations

 

		Three Months Ended March 31,
		2018				2017
Revenue		$	1,149,342			$	434,507
Cost of sales			587,464				341,042
Gross profit			561,878				93,465
Operating expenses:
Selling & marketing			610,662				279,727
Research & development			49,667				44,702
General and administrative expenses			936,960				737,681
Amortization & depreciation			127,665				145,488
Total operating expenses			1,724,954				1,207,598
Operating loss			(1,163,076	)			(1,114,133	)
Unrealized gain on derivative liabilities			-				310,773
Unrealized gain on marketable securities			228				-
Interest income			237				164
Net loss			(1,162,611	)			(803,196	)
Deemed dividend on Series A Convertible preferred stock			(13,750	)			(20,000	)
Net loss attributable to common stockholders		$	(1,176,361	)		$	(823,196	)
Net income per common share – basic and diluted			(0.01	)			(0.01	)
Weighted average common shares outstanding – basic and diluted			161,664,077				111,884,024

 

Revenue

 

For the three months ended March 31, 2018 and 2017, revenue was $1,149,342 and $434,507, respectively, consisting primarily of revenues from various levels of subscriptions and technology development. Revenues increased due to a change of marketing focus.

 

Cost of Sales

 

For the three months ended March 31, 2018 and 2017, cost of sales was $587,464 and $341,042, respectively, consisting primarily of sub-contracting to outside sources, direct labor and direct technology costs.

 

Gross Profit

 

An increase in our revenues resulted in a gross profit of $561,878 for the current period, as compared to a gross profit of $93,465 during the three months ended March 31, 2017. Gross profit increased as a result of lower implementation costs as compared to the same period in 2017.

 

Selling and Marketing Expenses

 

Selling and marketing expenses were $610,662 and $279,727 for the three months ended March 31, 2018 and 2017, respectively.  The increase resulted from the higher sales activity in 2018 as compared to 2017.

 

 

Research and Development Expenses

 

Research and development expenses were $49,667 and $44,702 for three months ended March 31, 2018 and 2017, respectively. Research and development expenses decreased from period to period and reflect continued developments of our product.

 

General and Administrative Expenses

 

General and administrative expenses were $936,960 and $737,681 for the three months ended March 31, 2018 and 2017, respectively. General and administrative expenses increased $199,279 due primarily to higher service provider costs as compared to 2017. Stock based compensation for the three months ended March 31, 2018 was $367,303 as compared to $211,464 for the same period last year.

 

Amortization and Depreciation

 

Amortization and depreciation expenses were $127,665 and $145,488 for the three months ended March 31, 2018 and 2017, respectively. The decrease in expense was primarily related to expiring software development costs in 2017.

 

Gain on change in Fair Value of Derivative Liabilities

 

In October 2015, 2016 and 2017, we issued warrants with an embedded reset provisions requiring us to fair value the derivatives each reporting period and mark to market as a non-cash adjustment to our current period operations. This resulted in a gain of $310,733 on change in fair value of derivative liabilities for the three months ended March 31, 2017. The primary driver of the change in our derivative liability is our stock price. Generally, as our stock price decreases, the liability decreases resulting in a larger non-cash gain for the period to period change.

 

On January 1, 2018, we adopted ASU 2017-11 by electing the retrospective method to the outstanding financial instruments with a down round feature by means of a cumulative-effect adjustment to the statement of financial position as of the beginning of the fiscal year. Accordingly, we are no longer required to treat as derivatives our financial instruments with embedded anti-dilutive (reset) provisions.

 

Interest Income, net

 

Interest income, net during the three months ended March 31, 2018 was $237 compared to $164 for the three months ended March 31, 2017.

 

Contracts in Process/Revenue Recognition

 

Under current accounting procedures, the Company only recognizes revenue on new contracts for the actual services delivered in the period under the following criteria: (i) the contract has been signed and delivered to the Company; (ii) the services have been performed or delivered; and (iii) the client has been billed for the services delivered. The Company does not record deferred revenues for new contracts until the first payment for services has been received. The Company only records accounts receivable for the amount of revenue recognized as service is rendered, even if the client has been billed for the entire contract value. The table below summarizes the amount of contract value in excess of the revenue recognized of $4,134,641, our deferred revenue of $1,374,218 and amount recognized in the amount of $1,149,342 in 2018. Contract and deferred revenues are expected to be recognized in future periods. The Company also receives contracts for service hours but whose total contract value is uncertain. These “fee for service contracts” are recorded in the table below only if the services have been delivered and the associated revenue has been recognized.

 

 

A summary of our contracts in process is as follows:

 

Contracts in Process

March 31, 2018

Revenue

Revenue Recognized

Deferred

Contract Amount in Excess of Deferred

Contract

Recognized

3 Months Ended

Revenue

Revenue and

Amount

prior to 2018

March 31, 2018

March 31, 2018

Recognized Revenue

Fixed Contracts

$

8,850,037

$

2,191,836

$

1,149,342

$

1,374,218

$

4,134,641

 

Liquidity and Capital Resources

 

Working Capital

 

		At March 31,				At December 31,
		2018				2017
Current Assets		$	1,507,719			$	2,134,403
Current Liabilities			1,448,678				4,333,329
Working Capital (Deficit)		$	59,041			$	(2,198,926	)

 

The working capital (deficit) (current liabilities in excess of current assets) for the periods ended March 31, 2018 and December 31, 2017 was $59,041 and $(2,198,926) respectively. The increase in working capital was primarily due to increase in our accounts receivable of $31,512,in our deferred costs of $43,932, elimination of liability treatment of our previously issued anti-dilutive warrants of $2,984,010and a decrease in accounts payable and accrued expenses of $25,954. In addition, the Company used actual net cash in operations of $596,715 during the three months ended March 31, 2018. The Company has incurred net losses since inception. It is anticipated that the Company has cash sufficient to fund operations through October 2018.

 

The Company expects that cash used in operations will decrease significantly over the next several years as the Company executes its business plan. In the event that the Company is not able to fully achieve its plan, the Company may need to raise additional funds through equity or debt financing. If the Company is unsuccessful in raising additional financing, it will need to reduce costs and operations in the future.

 

Cash Flows

 

		For the Three months ended
		March 31,
		2018				2017
Net Cash (Used in) Operating Activities		$	(596,715	)		$	(613,048	)
Net Cash (Used in) Investing Activities			(86,718	)			(56,706	)
Net Cash Provided by Financing Activities			-				44,000
Decrease in Cash		$	(683,433	)		$	(625,754	)

 

We had cash in the amount of $1,276,997 and $1,960,430 as of March 31, 2018 and December 31, 2017, respectively.

 

 

Critical Accounting Policies

 

The discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with the accounting principles generally accepted in the United States. Preparing financial statements requires our management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue, and expenses. These estimates and assumptions are affected by our management’s application of accounting policies. We believe that understanding the basis and nature of the estimates and assumptions involved with the following aspects of our financial statements is critical to an understanding of our financial statements.

 

Our critical accounting policies, as described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, relate to capitalized legal patent costs, income taxes, goodwill, intangible assets, share-based payments, revenue recognition, and research and other accounting descriptions. There have been no material changes to our critical accounting policies as disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017.

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk

 

Not applicable.

 

Item 4. Controls and Procedures

 

Evaluation of Disclosure Controls and Procedures

 

As required under Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), we carried out an evaluation under the supervision and with the participation of our management, including our Principal Executive Officer and Principal Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of March 31, 2018. Based upon that evaluation, the Principal Executive Officer and Principal Financial Officer concluded that our disclosure controls and procedures as of March 31, 2018 were not effective, for the same reasons as previously disclosed under Item 9A. “Controls and Procedures” in our Annual Report on Form 10-K for our fiscal year ended December 31, 2017.

 

Changes in Internal Controls over Financial Reporting

 

There have been no changes in our internal controls over financial reporting (as defined in Rule 13a-15(f) and 15d-(f) of the Exchange Act) that occurred during the our last fiscal quarter to which this report relates that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

PART II — OTHER INFORMATION

 

Item 1. Legal Proceedings

 

On January 23, 2017, the court granted preliminary approval of the settlement pursuant to the terms set forth in the Stipulation of Settlement, provisionally certified a settlement class of shareholders, and directed plaintiffs' counsel to provide notice to that class. The Court held a Settlement Hearing May 8, 2017 to consider any objections to the Settlement that might be raised by settlement class members, to consider plaintiffs’ counsel's application for an award of fees and costs, and to determine whether the Order and Final Judgment as provided under the Stipulation of Settlement should be entered, dismissing the case with prejudice. On May 8, 2017, this Court granted final approval to the settlement of the securities class action brought by Lead Plaintiffs, individually and on behalf of all others similarly situated. On February 9, 2018, the Court authorized distribution of the Net Settlement Fund and to approved the proposed modified plan of allocation.

 

 

On May 16, 2016, a shareholder derivative complaint entitled LiPoChing, Derivatively and on Behalf of AudioEye, Inc., v. Bradley, et al., was filed in the United States District Court for the District of Arizona. As a derivative complaint, the plaintiff-shareholder purported to act on behalf of the Company against the Named Individuals. The Company was named as a nominal defendant. The complaint asserted causes of action including breach of fiduciary duty and others, arising from the Company’s restatement of its financial results for the first three quarters of 2014. The complaint sought, among other relief, compensatory damages, restitution and attorneys’ fees. In October 2016, the Company and Named Defendants filed a motion to dismiss. In response, the Plaintiff voluntarily dismissed the complaint without prejudice. Plaintiff’s counsel subsequently submitted a demand to the Company’s Board of Directors, to investigate the circumstances surrounding restatement of its financial results for the first three quarters of 2014. The Board has formed an Independent Director lead special litigation committee to evaluate the demand and make a recommendation to the Board. No determination has been made at this time.

 

On July 26, 2016, a shareholder derivative complaint entitled Denese M. Hebert, derivatively on Behalf of Nominal Defendant AudioEye, Inc., v. Bradley, et al., was filed in the State of Arizona Superior Court for Pima County. The complaint generally asserted causes of action related to the Company’s restatement of its financial statements for the first three fiscal quarters of 2014. As a derivative complaint, the plaintiff-shareholder purported to act on behalf of the Company against the Named Individuals. The Company was named as a nominal defendant. The defendants filed a motion to dismiss, which the Court granted on May 8, 2017, while also denying Plaintiff’s request for leave to amend the complaint. As in the above matter, after this matter was dismissed Plaintiff’s counsel subsequently submitted a demand to the Company’s Board of Directors, to investigate the circumstances surrounding restatement of its financial results for the first three quarters of 2014.

 

While the Company believes that its legal defense costs may be reimbursed by the Company’s insurance carrier, no reasonable estimate of the outcome of the litigation, the related legal fees, or the impact on the financial results of the Company can be made as of the date of this statement. This demand is being evaluated together with the above demand by the Board’s Independent Director lead special litigation committee. No determination has been made at this time.

 

We may become involved in various other routine disputes and allegations incidental to our business operations. While it is not possible to determine the ultimate disposition of these matters, our management believes that the resolution of any such matters, should they arise, is not likely to have a material adverse effect on our financial position or results of operations.

 

Item 1A. Risk Factors

 

There have been no material changes from the risk factors disclosed in Item 1.A of Part I of our Annual Report on Form 10-K for the year ended December 31, 2016.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

 

None.

 

Item 3. Defaults Upon Senior Securities

 

None.

 

Item 4. Mine Safety Disclosures

 

None.

 

Item 5. Other Information

 

None.

 

Item 6. Exhibits

 

Exhibit No.		Description
31.1*		Certification of the Principal Executive Officer and Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1*		Certification of the Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101.INS*		XBRL Instance Document
101.SCH*		XBRL Taxonomy Extension Schema Document
101.CAL*		XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF*		XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*		XBRL Taxonomy Extension Label Linkbase Document
101.PRE*		XBRL Taxonomy Extension Presentation Linkbase Document

 

*	Filed herewith.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on the 15th day of May 2018.

 

	AUDIOEYE, INC.
	By:	/s/ Dr. Carr Bettis
		Dr. Carr Bettis
		Principal Executive Officer
	By:	/s/ Todd Bankofier
		Todd Bankofier
		Chief Executive Officer

 

 

 

Exhibit 31.1

 

CERTIFICATION UNDER SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Carr Bettis, Principal Executive Officer of AudioEye, Inc. (the “Registrant”), certify that:

 

1.           I have reviewed this Quarterly Report on Form 10-Q for the period ended March 31, 2018 of AudioEye, Inc. (the “Quarterly Report”);

 

2.           Based on my knowledge, this Quarterly Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Quarterly Report;

 

3.           Based on my knowledge, the financial statements, and other financial information included in this Quarterly Report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this Quarterly Report;

 

4.           The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:

 

(a)           Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to me by others within those entities, particularly during the period in which this Quarterly Report is being prepared;

 

(b)           Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under my supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)           Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this Quarterly Report my conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Quarterly Report based on such evaluation; and

 

(d)           Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and

 

5.           The Registrant’s other certifying officer and I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):

 

(a)           All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and

 

(b)           Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting.

 

Date: May 15, 2018	By:	/s/ Carr Bettis
		Name:	Carr Bettis
		Title:	Principal Executive Officer and Principal Financial Officer

 

 

Exhibit 32.1

 

CERTIFICATION UNDER SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the filing by AudioEye, Inc. (the “Registrant”) of its Quarterly Report on Form 10-Q for the period ended March 31, 2018 (the “Quarterly Report”) with the Securities and Exchange Commission, I, Carr Bettis, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

(i)         The Quarterly Report fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

 

(ii)        The information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

 

A signed original of this written statement required by Section 906 has been provided to the Registrant and will be retained by the Registrant and furnished to the Securities and Exchange Commission or its staff upon request.

 

Date: May 15, 2018	By:	/s/ Carr Bettis
		Name:	Carr Bettis
		Title:	Principal Executive Officer and Principal Financial Officer

 

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