Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Evaluation
of Disclosure Controls and Procedures.
We maintain disclosure
controls and procedures designed to provide reasonable assurance that information required to be disclosed in reports filed or submitted
under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange
Commission’s rules and forms and accumulated and communicated to our management, including our Chief Executive Officer and Chief
Financial Officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosures.
Our management, with
the participation of our Chief Executive Officer and our Chief Financial Officer, conducted an evaluation, as of the end of the period
covered by this report, of the effectiveness of our disclosure controls and procedures, as such term is defined in Exchange Act Rule 13a-15(e).
Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that, as of the end of the period
covered by this report, our disclosure controls and procedures, as defined in Rule 13a-15(e), were effective at the reasonable assurance
level.
Management’s
Report on Internal Control Over Financial Reporting.
The Company’s
management is responsible for establishing and maintaining adequate internal control over financial
reporting, as defined in Exchange Act Rule 13a-15(f). Internal control over financial reporting is a process designed 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
in the United States of America. The Company’s internal control over financial reporting includes those policies and procedures
that:
● pertain
to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the Company;
● provide
reasonable assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted accounting principles, and that
receipts and expenditures of the Company are being made only in accordance with authorizations
of management and directors of the Company; and
● provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use, or disposition of the Company's assets that could
have a material effect on the financial statements.
Because
of its inherent limitations, any system of internal control over financial reporting, no matter how well defined, may not prevent or detect
misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
The Company’s
management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2021. In
making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission
(COSO) in Internal Control — Integrated Framework (2013) . Based on this assessment using those criteria, management
concluded that the Company’s internal control over financial reporting was effective as of December 31, 2021.
Our internal control over financial reporting
as of December 31, 2021, has been audited by UHY LLP an independent registered public accounting firm, as stated in their report which
is included in Item 8 of this report and is incorporated by reference herein.
Changes
in Internal Controls Over Financial Reporting .
There was
no change in our internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act), that occurred during
the quarter ended December 31, 2021 that has materially affected, or is reasonably likely to materially affect, our internal control
over financial reporting.
Item
9B. Other Information
None
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent
Inspections.
None
29
PART III
Item 10. Directors, Executive Officers and
Corporate Governance
Except for
the information provided in PART I, Item 4.1, “Information About Our Executive Officers” and as set forth below,
the required information is incorporated by reference from our definitive proxy statement for our 2022 Annual Meeting of Shareholders,
including, but not necessarily limited to, the sections entitled “Proposal No. 1 Election of Directors, “Committees of the
Board of Directors” and “Information Regarding Security Holders – Delinquent Section 16(a) Reports.”
We have a Code of Business Conduct and Ethics
(the “Code”) that applies to our directors, officers, and employees. Only the Board may grant a waiver of any provision for
a director, executive officer, or any other principal financial officer, and any such waiver, or any amendment to the Code, will be promptly
disclosed as required at www.optimizerx.com . The Code can be found on the Company’s website at www.optimizerx.com under
“Investor Relations—Governance.” The information on the website is not and should
not be considered part of this Form 10-K and is not incorporated by reference in this Form 10-K.
Item 11. Executive Compensation
The required information is incorporated
by reference from our definitive proxy statement for our 2022 Annual Meeting of Shareholders, including, but not necessarily limited to,
the sections entitled “Director Compensation” and “Executive Compensation.
30
Item 12. Security Ownership of Certain Beneficial
Owners and Management and Related Stockholder Matters.
Except for
the information set forth below, the required information is incorporated by reference from our definitive proxy statement for our 2022
Annual Meeting of Shareholders, including, but not necessarily limited to, the section entitled “Information Regarding Security
Holders.”
Equity Compensation Plan Information
The following table details information
regarding our existing equity compensation plans as of December 31, 2021:
Plan Category
Number of securities to be issued upon exercise of outstanding options, warrants and rights
Weighted- average exercise price of outstanding options, warrants and rights
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))
(a)
(b)
(c)
Equity compensation plans approved by security holders
2013 Equity Compensation Plan – Options
671,011
27.29
-
2013 Equity Compensation Plan – Restricted Stock Units
145,550
N/A
-
2021 Equity Incentive Plan – Options
112,536
75.19
-
2021 Equity Incentive Plan – Restricted Stock Units
254,653
N/A
2,132,791
Equity compensation plans not approved by security holders
-
N/A
-
Total
1,183,750
2,132,791
31
Item 13. Certain Relationships and Related
Transactions, and Director Independence
The required
information is incorporated by reference from our definitive proxy statement for our 2022 Annual Meeting of Shareholders, including, but
not necessarily limited to, the sections entitled “Certain Relationships and Related Transactions” and “Corporate Governance
- Director Independence.”
Item 14. Principal Accounting Fees
and Services
The required
information is incorporated by reference from our definitive proxy statement for our 2022 Annual Meeting of Shareholders, including, but
not necessarily limited to, the sections entitled “Ratification of UHY LLP as Independent Registered Public Accounting Firm –
Independent Registered Public Accountant Fee Information” and “Ratification of UHY LLP as Independent Registered Public Accounting
Firm – Pre-Approval Policies and Procedures.”
32
PART IV
Item 15. Exhibits and Financial Statements Schedules
(a) The consolidated financial statements
and exhibits listed below are filed as part of this Annual Report on Form 10-K.
(1) The Company’s consolidated financial statements, the notes thereto and the report of the Independent Registered Public Accounting
Firm are included in PART II, Item 8. “Financial Statements and Supplementary Data.”
(2) Financial statement schedules have been omitted because they are not applicable, not required, or the required information is included
in the Consolidated Financial Statements or Notes thereto.
(3) Exhibits. Reference is made to Item 15(b) below.
(b) Exhibits .
The Exhibit Index, which immediately precedes the signature page, is incorporated by reference into this Annual Report on Form 10-K.
(c) Financial Statement Schedules .
Reference is made to Item 15(a)(2) above.
33
Item 16. Form 10-K Summary
None
EXHIBIT INDEX
Exhibit
Number
Description
3.1
Articles of Incorporation of OptimizeRx Corporation (the “Company”) Incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (Registration No. 333-155280) filed on November 12, 2008.
3.2
Certificate of Correction, dated April 30, 2018. Incorporated by reference to Exhibit 3.5 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2018.
3.3
Second Amended and Restated Bylaws of the Company. Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 25, 2021.
4.1**
Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934.
10.1†
Fourth Amended and Restated 2013 Equity Incentive Plan. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 12, 2020.
10.2†
OptimizeRx 2021 Equity Incentive Plan. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 25, 2021.
10.3†
Form of Stock Option Award for grants under the OptimizeRx Corporation 2021 Equity Incentive Plan. Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on August 25, 2021.
10.4†
Form of Performance Stock Option Award for grants under the OptimizeRx Corporation 2021 Equity Incentive Plan. Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on August 25, 2021.
10.5†
Form of Restricted Stock Unit Award for grants under the OptimizeRx Corporation 2021 Equity Incentive Plan. Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on August 25, 2021.
10.6†
Form of Performance Restricted Stock Unit Award for grants under the OptimizeRx Corporation 2021. Incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on August 25, 2021
10.7†
Amended Employment Agreement by and between the Company and William J. Febbo. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 26, 2019.
10.8†
Amendment to the Employment Agreement with William Febbo. Incorporated by reference to Exhibit 10.4 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
10.9 †
Addendum to the Employment Agreement with William J. Febbo. Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2021.
10.10*†
Third Addendum to the Employment Agreement with William J. Febbo,. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on October 19, 2021.
10.11†
Amended Employment Agreement with Miriam Paramore. Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on September 14, 2018.
10.12†
Amendment to the Employment Agreement with Miriam Paramore. Incorporated by reference to Exhibit 10.6 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
10.13†
Letter Agreement by and between the Company and Miriam Paramore. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 22, 2021.
10.14†
Employment Agreement by and between the Company and Stephen Silvestro. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 3, 2019.
10.15†
Amendment to the Employment Agreement with Stephen Silvestro. Incorporated by reference to Exhibit 10.5 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
10.16†
Employment Agreement with Marion Odence-Ford. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 11, 2021.
34
10.17*†
Offer Letter by and between the Company and Edward Stelmakh. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on September 30, 2021.
14.1
Code of Business Conduct and Ethics Incorporated by reference to Exhibit 14.1 to the Company’s Current Report on Form 8-K filed on June 25, 2021.
21.1**
List of Subsidiaries
23.1**
Consent of UHY LLP
31.1**
Certification of Chief Executive Officer pursuant to Securities Exchange Act Rule 13a-14(a)/15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2**
Certification of Chief Financial Officer pursuant to Securities Exchange Act Rule 13a-14(a)/15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1**
Certification of Chief Executive Officer and Chief 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**
Inline XBRL Instance Document
101.SCH
Inline XBRL Schema Document
101.CAL
Inline XBRL Calculation Linkbase Document
101.DEF
Inline XBRL Definition Linkbase Document
101.LAB
Inline XBRL Label Linkbase Document
101.PRE
Inline Presentation Linkbase Document
104
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
† Management Contracts and Compensatory Plans, Contracts or Arrangements.
* Exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any
omitted exhibit to the SEC upon request.
** Provided herewith.
35
SIGNATURES
Pursuant to the requirements of Section 13 or
15(d) of the Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
OptimizeRx Corporation
By:
/s/ William J. Febbo
William Febbo
Title:
Chief Executive Officer
Date:
February 28, 2022
By:
/s/ Edward Stelmakh
Edward Stelmakh
Title:
Chief Financial Officer
Chief Operations Officer
Date:
February 28, 2022
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.
Signature
Title
Date
/s/
William J. Febbo
Chief Executive Officer
and Director
February
28, 2022
William J. Febbo
(principal executive officer)
/s/
Edward Stelmakh
Chief Financial Officer
and Chief Operations Officer
February
28, 2022
Edward Stelmakh
(principal financial and
accounting officer)
/s/
Gus D. Halas
Chairman
February
28, 2022
Gus D. Halas
/s/
James Lang
Director
February
28, 2022
James Lang
/s/
Patrick Spangler
Director
February
28, 2022
Patrick Spangler
/s/
Lynn Vos
Director
February
28, 2022
Lynn Vos
/s/
Greg Wasson
Director
February
28, 2022
Greg Wasson
36