Fluent, Inc. 10-Q

Item 5. Other Information.   Because this Quarterly Report on Form 10-Q is being filed within four business days after the applicable triggering events, the information below is being disclosed under this Item 5 instead of under Item 1.01 (Entry into a Material Definitive Agreement), Item 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of Registrant) [and Item 3.03 (Material Modification to rights of Security Holders)] of Form 8-K.   On May 15, 2023, the Company entered into the third amendment to the credit agreement (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”) with certain subsidiaries of Fluent, LLC as guarantors, and Citizens Bank, N.A. as administrative agent, lead arranger and bookrunner, which amended certain provisions to temporarily: (i) add an additional tier of applicable margin to the selected rates; (ii) establish the applicable pricing floor for the remaining fiscal quarters in 2023; (iii) modify and adjust certain EBITDA add-backs for certain fiscal quarters in 2023; (iv) add monthly financial reporting for the remaining fiscal quarters in 2023; (v) provide additional financial covenant testing conditions on Fluent’s ability to draw on the Revolving Loans for the remaining fiscal quarters in 2023; (vi) provide additional notice of certain material events; (vii) add tiers to certain financial covenants and add a minimum cash liquidity financial covenant for the remaining fiscal quarters in 2023; (viii) provide additional restrictions on the ability to make loans and advances to officers, directors and employees for the remaining fiscal quarters in 2023; (ix) provide additional restrictions on the ability to invest in certain subsidiaries and joint ventures for the remaining fiscal quarters in 2023; (x) provide additional restrictions on the ability to make additional loans, investments or permitted acquisitions for the remaining fiscal quarters in 2023; and (xi) add unrestricted cash requirements in order for the Company to be permitted to pay dividends, make distributions or redeem or repurchase equity interests, for the remaining fiscal quarters in 2023, in each case pursuant to the terms and conditions under the Credit Agreement.   32 Table of Contents   Item 6. Exhibits.   The following exhibits are filed as part of, or incorporated by reference into, this Quarterly Report on Form 10-Q.             Incorporated by Reference   Filed Exhibit No.   Exhibit Description   Form   File No.   Exhibit   Filing Date   Herewith 3.1   Certificate of Domestication   8-K   001-37893   3.1   3/26/2015                               3.2   Certificate of Incorporation   8-K   001-37893   3.2   3/26/2015                               3.3   Certificate of Amendment to the Certificate of Incorporation   8-K   001-37893   3.1   9/26/2016                               3.4   Certificate of Amendment to the Certificate of Incorporation   8-K   001-37893   3.1   4/16/2018                               3.5   Amended and Restated Bylaws   8-K   001-37893   3.2   2/19/2019                               4.1   Form of Common Stock Certificate   8-K   001-37893   4.1   4/16/2018                               4.2   Form of Additional Warrants (incorporated by reference to Exhibit 4.5 to the Company's Current Report on Form 8-K filed October 17, 2017).   8-K   001-37893   4.5   10/17/2017                               4.3   Description of Securities.*   10-K   001-37893   4.3   3/15/2023                               10.1   Consulting Agreement, by and between Fluent, Inc. and Ryan Perfit, dated January 20, 2023 and effective February 1, 2023.                   X                           31.1   Certification of Chief Executive Officer filed pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) of the Securities and Exchange Act of 1934 as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.                   X 31.2   Certification of Interim Chief Financial Officer filed pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) of the Securities and Exchange Act of 1934 as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.                   X 32.1*   Certification by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.                   X 32.2*   Certification by Interim Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.                   X 101.INS   Inline XBRL Instance Document (the Instance Document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document)                   X 101.SCH   Inline XBRL Taxonomy Extension Schema Document                   X 101.CAL   Inline XBRL Taxonomy Extension Calculation Linkbase Document                   X 101.DEF   Inline XBRL Taxonomy Extension Definition Linkbase Document                   X 101.LAB   Inline XBRL Taxonomy Extension Label Linkbase Document                   X 101.PRE   Inline XBRL Taxonomy Extension Presentation Linkbase Document                   X 104   Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)                     *   This certification is deemed not filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.   33 Table of Contents   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.            Fluent, Inc.                     May 15, 2023   By:   /s/ Ryan Perfit         Ryan Perfit         Interim Chief Financial Officer         (Principal Financial and Accounting Officer) 34