Item 5. Other Information
Item 5. Other Information.
Rule 10b5 - 1 Trading Plans
During the fiscal quarter ended March 31, 2024, none of the Company's directors or executive officers adopted or terminated any contract, instruction or written plan for the purchase or sale of Company securities that was intended to satisfy the affirmative defense conditions of Rule 10b5 - 1 (c) or any "non-Rule 10b5 - 1 trading arrangement."
Private Placement
On May 13, 2024, the Company entered into Securities Purchase Agreements (the "Purchase Agreements") with certain accredited investors (the "Purchasers") to sell pre-funded warrants (the "Pre-Funded Warrants") to purchase up to 2,955,084 shares of the Company's common stock, at a purchase price of $3.384 per Pre-Funded Warrant. The Pre-Funded Warrants will have an exercise price of $0.005 per share of common stock, will be immediately exercisable after stockholder approval of the Private Placement and will terminate when exercised in full. The aggregate gross proceeds for the Private Placement were $10 million, before deducting offering expenses payable by the Company. The exercise of the Pre-Funded Warrants is subject to stockholder approval. The Company will be obligated to use its reasonable best efforts to obtain stockholder approval of the exercise of the Pre-Funded Warrants in accordance with the rules of the Nasdaq Stock Market at a special meeting of the Company's stockholders. The Purchasers included, among others, three individuals who are officers and/or directors of the Company and a principal stockholder of the Company. No underwriting discounts or commissions were paid with respect to the Private Placement. The issuance of the Pre-Funded Warrants was made in reliance upon the exemption from registration under Section 4 (a)( 2 ) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.
The foregoing descriptions of the Purchase Agreements and Pre-Funded Warrants do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Purchase Agreements and Pre-Funded Warrants, copies of which are filed as Exhibits 10.1 and 10.2, respectively, to this Quarterly Report on Form 10 -Q and are incorporated by reference herein.
Support Agreements
In connection with the Private Placement, the Company entered into Support Agreements with certain principal stockholders of the Company on May 13, 2024 ( the "Support Agreements"). Pursuant to the Support Agreements, the stockholders party thereto agreed to vote shares of the Company's common stock beneficially owned by them in favor of certain actions subject to Stockholder Approval (as defined in the Purchase Agreements) at any meeting of stockholders of the Company and to vote against or decline to consent to any proposal or any other corporate action or agreement that would result in a breach by the Company of the Purchase Agreements or impede, delay or otherwise adversely affect the consummation of the transactions contemplated by the Purchase Agreements or any similar agreements entered into by the Company and the party stockholders in connection with the consummation of the transactions contemplated by the Purchase Agreements. Each of the parties to the Support Agreements is also a purchaser in the Private Placement.
The foregoing description of the Support Agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Support Agreements, a copy of which is filed as Exhibit 10.3 to this Quarterly Report on Form 10 -Q and is incorporated by reference herein.
SLR Credit Agreement
On April 2, 2024, Fluent, LLC, a wholly-owned subsidiary of the Company as Borrower, entered into the SLR Credit Agreement with Fluent, Inc. and certain subsidiaries of the Borrower as guarantors, SLR, and the lenders from time to time party thereto. For further information concerning the SLR Credit Agreement, see Part II, Item 2 — Management's Discussion and Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources.
On May 15, 2024, the Borrower, the Company and certain subsidiaries of the Borrower as guarantors, SLR, and the lenders from time to time party thereto entered into a first amendment to SLR Credit Agreement (the "SLR Credit Agreement Amendment") pursuant to which SLR ( 1 ) waived any required prepayments on the SLR Revolver from the proceeds from the Private Placement; ( 2 ) required that the Credit Parties (as defined in the SLR Credit Agreement) retain a financial advisor; ( 3 ) increased the minimum excess availability covenant following the Private Placement; ( 4 ) amended the definition of borrowing base (as defined in the SLR Credit Agreement); and ( 5 ) amended certain post-closing obligations.
The foregoing description of the SLR Credit Agreement Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the SLR Credit Agreement Amendment, a copy of which is filed as Exhibit 10.8 to this Quarterly Report on Form 10 -Q and is incorporated by reference herein.
35
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
10.1+
Securities Purchase Agreement by and between Fluent, Inc. and the purchasers a party thereto, dated as of May 13, 2024.
X
10.2
Form of Pre-Funded Warrant dated May 13, 2024
X
10.3
Form of Support Agreement by and among Fluent, Inc. and the parties thereto dated as of May 13, 2024
X
10.4
Second Temporary Waiver Under Credit Agreement, effective as of January 17, 2024, by and among Fluent, LLC, as Borrower, certain subsidiaries of the Borrower party thereto, the lenders party thereto, and Citizens Bank, N.A., as Administrative Agent
10-K
001-37893
10.11
4/2/2024
10.5
Third Temporary Waiver and Amendment to Credit Agreement, effective as of January 26, 2024, by and among Fluent, LLC, as Borrower, certain subsidiaries of the Borrower party thereto, the lenders party thereto, and Citizens Bank, N.A., as Administrative Agent
10-K
001-37893
10.12
4/2/2024
10.6
Amendment to Letter Agreement for Consulting Services, effective as of February 1, 2024, by and between Fluent, LLC and CRIO, LLC
10-K
001-37893
10.25
4/2/2024
10.7
Credit Agreement dated as of April 2, 2024, by and among, Fluent, LLC, Fluent, Inc., certain subsidiaries of Fluent, LLC as guarantors, Crystal Financial LLC D/B/A SLR Credit Solutions, and each other lender from time to time party thereto.
10-K
001-37893
10.26
4/2/2024
10.8
First Amendment to Credit Agreement, dated as of May 15, 2024, by and among the Company, lenders thereto, Crystal Financial LLC d/b/a SLR Credit Solutions, and Fluent, LLC.
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.
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.
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)
X
*
Furnished herewith. 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.
+
Certain of the schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(10). The Company hereby undertakes to furnish supplementally a copy of all omitted schedules to the SEC upon its request
36
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, 2024
By:
/s/ Ryan Perfit
Ryan Perfit
Interim Chief Financial Officer
(Principal Financial and Accounting Officer)
37