As filed with the Securities and Exchange Commission on July 13,
2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________
FLUENT, INC.
(Exact
name of registrant as specified in its charter)
____________________
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Delaware
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77-0688094
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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33 Whitehall Street, 15th Floor
New York, New York
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10004
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Fluent, Inc. 2018 Stock Incentive Plan
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(Full
title of the plan)
Daniel J Barsky, Esq.
Corporate Secretary
33 Whitehall Street
15th Floor
New York, New York 10004
(Name
and address of agent for service)
____________________
(646) 669-7272
(Telephone
number, including area code, of agent for service)
____________________
With a copy to:
Michael Francis, Esq.
Christina C. Russo, Esq.
Akerman LLP
Las Olas Centre II, Suite 1600
350 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
(954) 463-2700
____________________
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, 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.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting
company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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. ☐
CALCULATION OF REGISTRATION FEE
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Title
of securities
to be
registered
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Amount
to
be
registered (1)
(2)
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Proposed
maximum
offering
price
per
share (3)
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Proposed
maximum
aggregate
offering
price (3)
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Amount
of
registration
fee (3)
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Common Stock,
$0.0005 par value
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7,522,629
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$2.50
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$18,806,573
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$2,342
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(1)
Represents shares
of Common Stock, par value $0.0005 (the “Common
Stock”), of Fluent, Inc. (the “Company”) issuable
under the Fluent, Inc. 2018 Stock Incentive Plan (the “Fluent
Plan”).
(2)
We also register
such additional and indeterminate number of shares of Common Stock
as may be issuable under the Fluent Plan by reason of any stock
split, stock dividend, recapitalization, combination of shares,
exchange of shares, or other similar change affecting the
outstanding Common Stock.
(3)
Estimated solely
for the purpose of calculating the registration fee which was
computed in accordance with Rule 457(c) and Rule 457(h)(1) under
the Securities Act of 1933, as amended (the “Securities
Act”), on the basis of the average of the high and low sales
prices per share of the stock as reported on the Nasdaq Stock
Market on July 10, 2018.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of
Form S-8 will be sent or given to participants as
specified by Rule 428(b)(1) promulgated under the Securities
Act of 1933, as amended (the “Securities Act”). In
accordance with Rule 428(b)(1) and the requirements of Part I of
Form S-8, these documents are not required to be filed
with the Securities and Exchange Commission (the
“SEC”), either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act. Copies of the foregoing
documents will be provided without charge upon written or oral
request directed to the Corporate Secretary at the address and
telephone number on the cover of this Registration
Statement.
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference.
The SEC
allows us to provide information about our business and other
important information to you by “incorporating by
reference” the information we file with the SEC, which means
that we can disclose the information to you by referring in this
prospectus to the documents we file with the SEC. Under the
SEC’s regulations, any statement contained in a document
incorporated by reference in this prospectus is automatically
updated and superseded by any information contained in this
prospectus, or in any subsequently filed document of the types
described below.
We
incorporate into this prospectus by reference the following
documents we filed with the SEC, each of which should be considered
an important part of this prospectus:
●
our Annual Report
on Form 10-K for the year ended December 31, 2017,
filed with the SEC on March 14, 2018 (and portions of the
Company’s Proxy Statement on Schedule 14A, filed on
April 30, 2018, to the extent incorporated by reference into such
Annual Report on Form 10-K);
●
our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2018, filed
with the SEC on May 9, 2018;
●
our Current Reports
on Form 8-K filed with the SEC on January 11, 2018,
February 26, 2018, February 28, 2018, March 12,
2018, March 27, 2018, April 16, 2018 and June 8, 2018;
and
●
the description of
our Common Stock contained in our registration statement on
Form 8-A filed on September 26, 2016 and our
registration statement on Form S-3 filed on
December 16, 2016 and amended on January 24, 2017, and
any amendments and reports filed for the purpose of updating such
description.
In
addition, all documents we subsequently file pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
into this registration statement and to be a part hereof from the
date of filing of such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for the purposes of this
registration statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
We will
provide to you, upon request, a copy of each of our filings at no
cost. Please make your request by writing or telephoning us at the
following address or telephone number:
Fluent,
Inc.
Attn:
Legal Department
33
Whitehall Street, 15th Floor
New
York, NY 10004
Tel:
(646) 669-7272
You
should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not
authorized anyone else to provide you with different information.
You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on
the front of those documents.
4
Item
4.
Description
of Securities.
Not
applicable.
Item
5.
Interests
of Named Experts and Counsel.
Not
applicable.
Item
6.
Indemnification
of Directors and Officers.
Section 145(a)
of the Delaware General Corporation Law (the “DGCL”),
which the Company is subject to, provides that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person
in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person’s conduct was
unlawful. Section 145(b) of the DGCL provides that a
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to
the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper. To the extent that a present or
former director or officer of a corporation has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of
Section 145 of the DGCL, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by such person in connection therewith.
Any
indemnification under subsections (a) and (b) of
Section 145 of the DGCL (unless ordered by a court) shall be
made by the Company only as authorized in the specific case upon a
determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set
forth in subsections (a) and (b) of Section 145. Such
determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (1) by
a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or
(2) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum, or
(3) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or
(4) by the stockholders. Expenses (including attorneys’
fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the corporation as authorized
in this section. Such expenses (including attorneys’ fees)
incurred by former directors and officers or other employees and
agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate. The indemnification and
advancement of expenses provided by, or granted pursuant to,
Section 145 shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another
capacity while holding such office.
5
Section 145
of the DGCL also empowers a corporation to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the
corporation would have the power to indemnify such person against
such liability under Section 145.
Article
6 of the Company’s Bylaws provide that directors, officers,
employees and agents shall be indemnified to the fullest extent
permitted by the DGCL. Article 10 of the Company’s
Certificate of Incorporation also provides that directors shall be
indemnified to the fullest extent permitted by the
DGCL.
The
Company carries directors and officers liability coverages designed
to insure its officers and directors and those of its subsidiaries
against certain liabilities incurred by them in the performance of
their duties, and also providing for reimbursement in certain cases
to the Company and its subsidiaries for sums paid to directors and
officers as indemnification for similar liability. The Company has
entered into Indemnification Agreements with its executive officers
and directors providing for advancement of expenses and
indemnification to the fullest extent permissible under
DGCL.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item
7.
Exemption
From Registration Claimed.
Not
applicable.
Item
8.
Exhibits.
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Exhibit
Number
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Exhibit
Description
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Opinion
of Akerman LLP.*
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Fluent,
Inc. 2018 Stock Incentive Plan (incorporated by reference to
Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed June 8, 2018). +
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Consent
of Akerman LLP (included in Exhibit 5.1).*
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Consent
of Grant Thornton LLP.*
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Consent
of EisnerAmper LLP.*
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Power
of Attorney (set forth on the signature page to this Registration
Statement).*
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*
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Filed
herewith.
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+
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Management
contract or compensatory plan or arrangement.
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6
Item
9.
Undertakings.
The
undersigned Registrant hereby undertakes:
(1)
To file, during any
period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
i.
To include any
prospectus required by section 10(a)(3) of the Securities Act of
1933;
ii.
To reflect in the
prospectus any facts or events arising after the effective date of
the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration
Fee” table in the effective Registration
Statement;
iii.
To include any
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
provided,
however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement.
(2)
That, for the
purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3)
To remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination
of the offering.
(4)
The undersigned
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5)
Insofar as
indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such
issue.
7
SIGNATURES
The Registrant. 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 New
York, New York on the July 13, 2018.
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Fluent,
Inc.
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By:
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/s/
Ryan
Schulke
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Ryan
Schulke
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Chief Executive
Officer
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KNOW
ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints each of Ryan Schulke and
Matthew Conlin his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to
sign any and all amendments to this registration statement, and to
file the same, with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act or things
requisite and necessary to be done in and about the premises, as
fully and to all intents and purposes as he might or could do in
person hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Ryan Schulke
Ryan
Schulke
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Chief
Executive Officer and Director
(Principal
Executive Officer)
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July
13, 2018
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/s/
Ryan Perfit
Ryan
Perfit
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Interim
Chief Financial Officer
(Principal
Financial Officer and Principal Accounting Officer)
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July
13, 2018
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/s/
Matthew Conlin
Matthew
Conlin
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President
and Director
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July
13, 2018
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/s/
Andrew Frawley
Andrew
Frawley
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Director
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July
13, 2018
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/s/
Peter Benz
Peter
Benz
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Director
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July
13, 2018
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/s/
Donald Mathis
Donald
Mathis
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Director
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July
13, 2018
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8
Exhibit 5.1
 |
Akerman
LLP
Las
Olas Centre II, Suite 1600
350
East Las Olas Boulevard
Fort
Lauderdale, FL 33301-2999
T: 954
463 2700
F: 954
463 2224
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July
13, 2018
Fluent,
Inc.
33
Whitehall Street
15th
Floor
New
York, New York 10004
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Fluent, Inc., a Delaware corporation
(the "Company"),
in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission")
of a Registration Statement on Form S-8 (the "Registration
Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement relates to the
offering and sale by the Company of up to 7,522,629
shares of the Company's Common Stock,
par value $0.0005 per share (the "Shares"),
to be issued pursuant to awards ("Awards")
to be granted under the Fluent, Inc. 2018 Stock Incentive Plan (the
"Plan").
In connection with this opinion letter, we have examined the
Registration Statement and such corporate records, documents,
instruments and certificates of public officials and of the Company
that we have deemed necessary for the purpose of rendering the
opinions set forth herein. We have also reviewed such matters of
law as we considered necessary or appropriate as a basis for the
opinion set forth below.
This opinion letter is being furnished in accordance with the
requirements of Item 601 of Regulation S-K under the Act. This
opinion letter is limited to the matters expressly stated herein
and no opinions are to be inferred or implied beyond the opinions
expressly so stated.
With your permission, we have made and relied upon the following
assumptions, without any investigations or inquiry by us, and our
opinion expressed below is subject to, and limited and qualified by
the effect of, such assumptions: (i) all corporate records
furnished to us by the Company are accurate and complete;
(ii) the Registration Statement filed by the Company with the
Commission is identical to the forms of the documents that we have
reviewed; (iii) all statements as to factual matters that are
contained in the Registration Statement (including the exhibits to
the Registration Statement) are accurate and complete;
(iv) the Company will at all times reserve a sufficient number
of shares of its unissued common stock as is necessary to provide
for the issuance of the Shares; and (v) with respect to
documents that we reviewed in connection with this opinion letter,
all documents submitted to us as originals are authentic, all
documents submitted to us as certified, facsimile or photostatic
copies conform to originals of such documents, all such original
documents are authentic, the signatures on all documents are
genuine, and all natural persons who have executed any of the
documents have the legal capacity to do so.
akerman.com
Fluent,
Inc.
July
13, 2018
Page
2
Based upon the foregoing, and subject to further assumptions and
qualifications set forth herein, it is our opinion that the Shares
have been duly authorized, and that when the Shares are issued upon
full payment therefor in accordance with the terms of the Plan and
any Awards made under the Plan, such Shares will be validly issued,
fully paid and nonassessable shares of the Company's common
stock.
We express no opinion as to matters governed by laws of any
jurisdiction other than the federal laws of the United States and
the Delaware General Corporation Law. We neither express nor imply
any obligation with respect to any other laws or the laws of any
other jurisdiction or of the United States. For purposes of this
opinion, we assume that the Shares will be issued in compliance
with all applicable state securities or blue sky
laws.
We assume no obligation to update or supplement this opinion letter
if any applicable laws change after date of this opinion letter or
if we become aware after the date of this opinion letter of any
facts, whether existing before or arising after the date hereof,
that might change the opinions expressly so stated. Without
limiting the generality of the foregoing, we neither express nor
imply any opinion regarding the contents of the Registration
Statement, other than as expressly stated herein with respect to
the Shares.
This opinion letter is furnished in connection with the filing of
the Registration Statement and may not be relied upon for any other
purpose without our prior written consent in each instance. Further
no portion of this letter may be quoted, circulated or referred to
in any other document for any other purpose without our prior
written consent.
We consent to your filing a copy of this opinion as Exhibit 5.1 to
the Registration Statement. In giving such permission, we do not
admit hereby that we come within the category of persons whose
consent is required under Section 7 of the Act, or the rules
and regulations of the Commission thereunder.
Very truly yours,
/s/ Akerman LLP
Exhibit
23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have
issued our reports dated March 14, 2018 with respect to the
consolidated financial statements and internal controls over
financial reporting of Cogint, Inc. (now known as Fluent, Inc.)
included in the Annual Report on Form 10-K for the year ended
December 31, 2017, which are incorporated by reference in this
Registration Statement. We consent to the incorporation by
reference of the aforementioned reports in this Registration
Statement.
/s/
Grant Thornton LLP
New
York, New York
July
13, 2018
Exhibit
23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in this Registration
Statement of Fluent, Inc. on Form S-8 (No. 333-______) to be filed
on or about July 13, 2018 of our report dated March 9, 2016, on our
audit of the consolidated balance sheet of Fluent, Inc. and
subsidiaries as of December 8, 2015 and the related
consolidated statements of net loss and comprehensive loss, changes
in stockholders’ equity and cash flows for the period from
January 1, 2015 through December 8, 2015, which report
was incorporated by reference in Fluent, Inc.’s Annual Report
on Form 10-K filed March 14, 2018.
/s/ EisnerAmper LLP
EISNERAMPER LLP
New York, New York
July 13, 2018