Exhibit 5.1
| | | Faegre Drinker Biddle & Reath LLP |
| | | 2200 Wells Fargo Center |
| | | 90 South Seventh Street |
| | | Minneapolis, Minnesota 55402 |
| | | +1 612 766 7000 main |
| | | +1 612 766 1600 fax |
August 27, 2020
AudioEye, Inc.
5210 E. Williams Circle, Suite 750
Tucson, Arizona 85711
Ladies and Gentlemen:
We have acted as counsel to AudioEye, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a prospectus supplement dated August 26, 2020 (the “Prospectus Supplement”) to the Prospectus dated April 1, 2020 (together, the “Prospectus”), relating to the offer and sale by the Company, pursuant to that certain Underwriting Agreement dated August 27, 2020 (the “Underwriting Agreement”), by and between B. Riley Securities, Inc. (the “Underwriter”) and the Company, of 411,513 shares of the Company’s common stock, $0.00001 par value per share (the “Common Stock”), together with 61,726 shares of Common Stock for which the Underwriter has been granted an option to purchase (collectively, the “Shares”). The Prospectus forms a part of the Company’s registration statement on Form S-3 (File No. 333-237545) (the “S-3 Registration Statement”), and the registration statement pursuant to Rule 462(b) on Form S-3 filed with the U.S. Securities and Exchange Commission on August 27, 2020 (the “Rule 462(b) Registration Statement”, and together with the S-3 Registration Statement, the “Registration Statements”), each filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K.
We have examined the Registration Statements, the Prospectus, the Underwriting Agreement, the Certificate of Incorporation of the Company, as amended, the Company’s Certificate of Designation for Series A Convertible Preferred Stock, the By-laws of the Company, as amended, and the proceedings taken by the Company in connection with the authorization of the Shares. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company, without any independent verification thereof. We have also examined such authorities of law as we have deemed relevant as a basis for our opinions.
In rendering the opinions set forth below, we have assumed the accuracy and truthfulness of all public records of the Company and of all certifications, documents and other proceedings examined by us that have been produced by officials of the Company acting within the scope of their official capacities, without verifying the accuracy or truthfulness of such representations, and the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares, and upon payment therefor and delivery thereof in accordance with the terms of the Underwriting Agreement, the Shares will be validly issued, fully paid and nonassessable (i) if in the event issued as certificated shares, when certificates representing such Shares have been duly executed by the President or a Vice President of the Company and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, countersigned and registered by the Company’s transfer agent/registrar and delivered on behalf of the Company, or (ii) if in the event issued as uncertificated shares, upon book entry registration and issuance by the Company’s transfer agent and registrar.
This opinion is limited to the General Corporation Law of the State of Delaware. We express no opinion as to any other matters, including without limitation any matters relating to the securities or blue sky laws of any jurisdiction or any rules or regulations thereunder, and no opinion may be inferred or implied beyond that expressly stated herein. In addition, we express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed as of the date hereof and to the use of our name under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
This opinion is given as of the date hereof, and we assume no responsibility for updating this opinion or the opinions or statements set forth herein to take into account any event, action, interpretation or change in law occurring subsequent to the date hereof that may affect the validity of any of such opinions or statements.
| Very truly yours, | |
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| Faegre Drinker Biddle & Reath LLP | |
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| /s/ Matthew R. Kuhn | |
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| By: Matthew R. Kuhn, Partner | |
