VRMEW VerifyMe Inc

 

As filed with the Securities and Exchange Commission on June 7, 2024

 

Registration Statement No. 333-         

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_____________________

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

___________________

 

VerifyMe, Inc.

(Exact name of registrant as specified in its charter)

____________________

Nevada		23-3023677
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)

 

801 International Parkway, Fifth Floor

Lake Mary, FL, 32746

(Address of Principal Executive Offices) (Zip Code)

____________________

 

VerifyMe, Inc. 2020 Equity Incentive Plan

(Full title of the plan)

____________________

 

Adam Stedham

Chief Executive Officer

VerifyMe, Inc.

801 International Parkway, Fifth Floor

Lake Mary, FL, 32746

(585) 736-9400

(Name, address, and telephone number, including area code, of agent for service)

 

With copies to:

 

Alexander R. McClean, Esq.

Harter Secrest & Emery LLP

1600 Bausch & Lomb Place

Rochester, New York 14604

(585) 232-6500

____________________

 

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	x	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 7(a)(2)(B) of the Securities Act. ¨

 

 

EXPLANATORY NOTE

 

VerifyMe, Inc. (the “Registrant”) hereby files this Registration Statement on Form S-8 (the “Registration Statement”) to register an additional 1,000,000 shares of common stock, par value $0.001 per share (the “Common Stock”), under the VerifyMe, Inc. 2020 Equity Incentive Plan, as amended (the “Plan”). On October 16, 2020, the Registrant filed the registration statement on Form S-8 (File No. 333-249520) with the Securities and Exchange Commission (the "SEC"), registering 1,226,110 shares of Common Stock for issuance under the Plan (the "First Registration Statement"). On June 23, 2022 the Registrant filed the registration statement on Form S-8 (File No. 333-265806) with the SEC, registering an additional 1,000,000 shares of Common Stock for issuance under the Plan (the "Second Registration Statement"). On June 23, 2023, the Registrant filed the registration statement on Form S-8 (File No. 333-272849) with the Securities and Exchange Commission (the “SEC”), registering 1,000,000 shares of Common Stock for issuance under the Plan (the “Third Registration Statement” and, together with the First Registration Statement and Second Registration Statement, the "Prior Registration Statements"). The Prior Registration Statements are currently effective. In accordance with General Instruction E to Form S-8, the contents of such Prior Registration Statements, including all attachments and exhibits thereto, are incorporated herein by reference, except as amended hereby.

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

 

The following documents filed by the Registrant with the SEC are incorporated by reference herein (except for portions thereof furnished or otherwise not filed with the SEC pursuant to Items 2.02 or 7.01 of Form 8-K and corresponding information furnished under Item 9.01 of Form 8-K, which are deemed not to be incorporated by reference into this Registration Statement):

 

●

Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 29, 2024 (the “2023 Form 10-K”).

 

●

Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 14, 2024.

 

●

The portions of our Definitive Proxy Statement on Schedule 14A, filed on April 25, 2024, that are incorporated by reference into Part III of our 2023 Form 10-K.

 

●

Our Current Report on Form 8-K filed with the SEC on March 15, 2024 and June 5, 2024.

 

●

The description of our common stock, par value $0.001 per share, contained in our Registration Statement on Form 8-A, filed with the SEC on June 16, 2020, and any amendment or report filed for the purpose of updating such description (including Exhibit 4.8 to the 2023 Form 10-K).

 

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the effective date of this Registration Statement (except for the portions thereof furnished or otherwise not filed with the SEC which are deemed not to be incorporated by reference into this Registration Statement), but prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or de-registering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.

 

Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such statement.

 

Item 8.

Exhibits.

 

Exhibit No.		Description
4.1		Certificate of Amendment to Amended and Restated Articles of Incorporation (incorporated herein by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 22, 2020)
4.2		Amended and Restated Bylaws of VerifyMe, Inc., as amended through July 24, 2020 (incorporated herein by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on July 29, 2020)
5.1*		Opinion of Harter Secrest & Emery LLP
23.1*		Consent of MaloneBailey, LLP, independent registered public accounting firm
23.2*		Consent of Harter Secrest & Emery LLP (included in Exhibit 5.1)
24.1*		Power of Attorney (included on the signature page of this Registration Statement)
99.1		VerifyMe, Inc. 2020 Equity Incentive Plan (incorporated herein by reference from Exhibit 4.4 to the Company’s Registration Statement on Form S-8 (File No. 333-249520) filed on October 16, 2020)
99.2		First Amendment to the VerifyMe, Inc. 2020 Equity Incentive Plan (incorporated herein by reference from Exhibit 4.5 to the Company’s Registration Statement on Form S-8 (File No. 333-265806) filed on June 23, 2022)
99.3		Second Amendment to the VerifyMe, Inc. 2020 Equity Incentive Plan (incorporated herein by reference from Exhibit 4.6 to the Company’s Registration Statement on Form S-8 (File No. 333-272849) filed on June 23, 2023)
99.4*		Third Amendment to the VerifyMe, Inc. 2020 Equity Incentive Plan
107*		Filing Fee Table

 

*	Filed herewith.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Mary, State of Florida, on June 7, 2024.

  

		VERIFYME, INC.
	By:	/s/ Adam Stedham
		Adam Stedham
		Chief Executive Officer and President

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Adam Stedham and Nancy Meyers, each of them acting individually, as his or her true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, to act for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and otherwise), and any other documents in connection therewith, and to file the same, with all exhibits thereto, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Each of the undersigned has executed this power of attorney as of the date indicated.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Adam Stedham		Chief Executive Officer, President and		June 7, 2024
Adam Stedham		Director (Principal Executive Officer)
/s/ Nancy Meyers		Chief Financial Officer		June 7, 2024
Nancy Meyers		(Principal Financial Officer and Principal Accounting Officer)
/s/ Scott Greenberg		Director and Chairman of the Board		June 7, 2024
Scott Greenberg
/s/ Marshall Geller		Director		June 7, 2024
Marshall Geller

 

 

/s/ Howard Goldberg		Director		June 7, 2024
Howard Goldberg
/s/ Arthur Laffer		Director		June 7, 2024
Arthur Laffer
/s/ David Edmonds		Director		June 7, 2024
David Edmonds

 

 

 

 

 

 

Exhibit 5.1

 

 

 

 

June 7, 2024

 

VerifyMe, Inc. 801 International Parkway, Fifth Floor Lake Mary, Florida 32746

 

Re:

Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to VerifyMe, Inc., a Nevada corporation (the “Company”), in connection with its filing of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the registration of 1,000,000 shares of the Company’s common stock (the “Shares”), par value $0.001 per share, reserved for issuance pursuant to the terms of the Third Amendment to the VerifyMe, Inc. 2020 Equity Incentive Plan, as amended (the “Plan”). This opinion is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the filing of the Registration Statement.

 

For purposes of this opinion, we have with your permission made the following assumptions, in each case without independent verification: (i) the due authorization, execution and delivery of all documents by all the parties thereto; (ii) the genuineness of all signatures on all documents submitted to us; (iii) the authenticity and completeness of all documents, corporate records, certificates and other instruments (the “Records”) submitted to us; (iv) that photocopy, electronic, certified, conformed, facsimile and other copies submitted to us of the Records conform to the original Records; (v) the legal capacity of all individuals executing documents; (vi) that all documents are the valid and binding obligations of each of the parties thereto, enforceable against such parties in accordance with their respective terms and that no such documents have been amended or terminated orally or in writing; (vii) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion are true and correct; and (viii) that at the time the Shares are issued, the Company will be validly existing and there will be sufficient Shares authorized under the Company’s Amended and Restated Articles of Incorporation, as amended and then in effect, and not otherwise issued or reserved for issuance. As to all questions of fact material to this opinion, we have relied (without independent verification) upon certificates or comparable documents of officers and representatives of the Company.

 

1600 BAUSCH & LOMB PLACE  ROCHESTER, NY 14604-2711 PHONE: 585.232.6500 FAX: 585.232.2152

rochester, ny  •  buffalo, ny  •  albany, ny  •  corning, ny  •  new york, ny

 

 

 

 

VerifyMe, Inc.

June 7, 2024

Page 2 

 

 

Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement with the SEC, (ii) issuance of the Shares in accordance with the terms and conditions of the Plan, and (iii) receipt by the Company of the legal consideration for the Shares as specified in the Plan in an amount no less than the par value of such Shares, the Shares will be validly issued, fully paid and non-assessable.

 

We express no opinion with respect to the effect of any law other than the law of the State of New York, and the applicable provisions of Chapter 78 of the Nevada Revised Statutes as currently in effect.

 

This opinion letter has been prepared in accordance with the customary practice of lawyers who regularly give, and lawyers who regularly advise opinion recipients concerning, opinions of the type contained herein.

 

This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly addressed herein from any matter stated in this letter.

 

We consent to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. This opinion is rendered to you as of the date hereof and we assume no obligation to advise you or any other person hereafter with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even though the changes may affect the legal analysis or legal conclusion or other matters in this letter.

 

	Very truly yours,
	/s/ Harter Secrest & Emery LLP

 

 

 

 

 

 

Exhibit 23.1

 

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 29, 2024 with respect to the audited consolidated financial statements of VerifyMe, Inc. for the year ended December 31, 2023.

 

 

/s/ MaloneBailey, LLP

www.malonebailey.com

Houston, Texas

June 7, 2024

 

 

 

 

 

 

Exhibit 99.4

THIRD AMENDMENT

TO THE

VERIFYME, INC.

2020 EQUITY INCENTIVE PLAN

 

The VerifyMe, Inc. 2020 Equity Incentive Plan (the “Plan”) is hereby amended as follows, effective June 4, 2024:

 

1.       Section 5.1(a) of the Plan is hereby amended and restated in its entirety to provide as follows:

 

“(a) Available Shares. Subject to adjustment as provided in Section 12, the maximum number of shares of Common Stock reserved and available for grant and issuance pursuant to the Plan as of the Effective Date will be (i) 4,069,110, plus (ii) the number of shares of Common Stock available for issuance under the Prior Plan on the Effective Date. If the Plan is approved by the stockholders of the Company on the Effective Date, no awards may be granted under the Prior Plan on or after the Effective Date.”

 

* * * * *

 

 

 

 

 

 

Exhibit 107

 

CALCULATION OF FILING FEE TABLE

 

Form S-8

(Form Type)

 

VerifyMe, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.001 par value per share	Other (1)	1,000,000 (2) (3) (4)	$1.43 (1)	$1,430,000	.00014760	$211.10
Total Offering Amounts					$1,430,000		$211.10
Total Fee Offsets							-- (5)
Net Fee Due							$211.10

 

(1)

Estimated in accordance with paragraphs (c) and (h) of Rule 457 under the Securities Act of 1933, as amended (the “Securities Act”), solely for purposes of calculating the registration fee. The price for VerifyMe, Inc.’s (the “Company”) common stock, par value $0.001 per share (“Common Stock”) being registered hereby is based on a price of $1.43 per share of Common Stock, which is the average of the high ($1.45) and low ($1.41) trading prices for a share of Common Stock on June 3, 2024, as reported on the Nasdaq Stock Market.

 

(2)

This Registration Statement covers an additional 1,000,000 shares of Common Stock (the “Additional Shares”) authorized to be offered and sold under the VerifyMe, Inc. 2020 Equity Incentive Plan, as amended effective June 4, 2024.

 

(3)

The Additional Shares are in addition to the shares of Common Stock previously registered for issuance under the Plan pursuant to the Company’s Registration Statements on Form S-8 (File Nos. 333-249520, 333-265806, and 333-272849) filed with the Securities and Exchange Commission on October 16, 2020, June 23, 2022, and June 23, 2023 respectively.

 

(4)

Pursuant to Rule 416(a) of the Securities Act, this Registration Statement also covers any additional shares of Common Stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of outstanding shares of Common Stock.

 

(5)

The Company does not have any fee offsets.

 

 

 

 

 

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