UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
Date of Report (Date of Earliest Event Reported): July 9,
2018
FLUENT, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-37893
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77-0688094
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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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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Registrant’s telephone number, including area code:
646-669-7272
Not Applicable
Former name or former address, if changed since last
report
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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☐
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR §240.12b-2). 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 13(a) of the Exchange
Act. ☐
Item 1.01. Entry into a Material Definitive
Agreement.
On
July 9, 2018, Fluent, Inc. (the “Company”) entered into
First Amendments (the "First Amendments”) to the Amendments
to Warrants and Agreements to Exercise (“Amended Whitehorse
Warrants”) with (i) H.I.G. Whitehorse SMA ABF, L.P. regarding
46,667 warrants to purchase common stock of the Company, par value
$0.0005 per share, at an exercise price of $3.00 per share; (ii)
H.I.G. Whitehorse SMA Holdings I, LLC regarding 66,666 warrants to
purchase common stock of the Company at an exercise price of $3.00
per share; and (iii) Whitehorse Finance, Inc. regarding 186,667
warrants to purchase common stock of the Company at an exercise
price of $3.00 per share. In November 2017, the Amended Whitehorse
Warrants were exercised and the Company issued an aggregate of
300,000 shares of common stock of the Company (the “Warrant
Shares”) to the warrant holders. Pursuant to the First
Amendments, the parties agreed to reduce the price per share at
which the warrant holders have the right, but not the obligation,
to require the Company to purchase from the warrant holders the
Warrant Shares (the “Put Right”) to $3.8334 per share,
to modify the period during which the Put Right can be exercised to
the period commencing January 1, 2019 and ending December 15, 2019,
and to modify the minimum price that the warrant holders can
transfer any of the Warrant Shares to no less than $3.8334 per
share.
The
description of the First Amendments does not purport to be complete
and is qualified in its entirety by reference to the First
Amendments which are filed as Exhibits 4.1, 4.2, and 4.3 to this
Current Report on Form 8-K and incorporated herein by
reference.
Item 9.01. Financial Statements and Exhibits.
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Exhibit No.
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Description
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First Amendment to Amendment to Warrants and Agreement to
Exercise with H.I.G. Whitehorse
SMA ABF, L.P. dated July 9, 2018.
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First Amendment to Amendment to Warrants and
Agreement to Exercise with
H.I.G. Whitehorse SMA Holdings I, LLC dated July 9,
2018.
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First Amendment to Amendment to Warrants and
Agreement to Exercise with Whitehorse Finance, Inc. dated July 9,
2018.
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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 hereunto duly
authorized.
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Fluent, Inc.
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July 13, 2018
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By:
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/s/
Ryan
Schulke
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Name:
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Ryan Schulke
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Title:
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Chief Executive Officer
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3
Exhibit 4.1
FIRST AMENDMENT TO
AMENDMENT TO WARRANTS AND AGREEMENT TO EXERCISE
THIS FIRST AMENDMENT TO AMENDMENT TO WARRANTS AND
AGREEMENT TO EXERCISE (this “Amendment”)
is dated July 9, 2018 by and among Fluent, Inc., formerly known as
Cogint, Inc. (the “Corporation”)
and H.I.G. Whitehorse SMA ABF, LP (“Warrantholder”).
Capitalized terms used herein that are not otherwise defined shall
have the meanings set forth in the Warrants (defined
below).
RECITALS
WHEREAS, on October 7, 2016, the Corporation
issued to Warrantholder warrants to purchase, in aggregate,
forty-six thousand six hundred sixty-seven (46,667) shares of the
Corporation's Common Stock, par value $0.0005 per share (the
“Warrants”);
WHEREAS, on November 3, 2017, the Corporation and
Warrantholder entered into that certain Amendment to Warrants and
Agreement to Exercise (the “Agreement”),
lowering the Exercise Price of the Warrants on the terms set forth
therein; and
WHEREAS,
the Warrantholder exercised the Warrants pursuant to the terms of
the Agreement; and
WHEREAS,
the Corporation and Warrantholder have agreed to amend the put
right provided under the Agreement on the terms set forth
herein.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Put
Right. Section 7 of the Agreement is deleted in its entirety
and amended as follows:
“7.
PUT RIGHT.
Warrantholder shall have the right,
but not the obligation, to require the Corporation to purchase from
Warrantholder all Warrant Shares held by Warrantholder at a price
equal to $3.8334 per share (the “Put
Right”) on the terms and
conditions set forth herein. In order to exercise the Put Right,
Warrantholder shall provide the Corporation written notice thereof
at any time during the time period commencing January 1, 2019, and
ending 11:59 PM ET on December 15, 2019 (the
“Put Exercise
Period”). As a condition
precedent to the exercise of the Put Right and the Corporation's
obligation to consummate the Put Closing (as defined below),
Warrantholder shall own and possess the Warrant Shares free and
clear of any and all liens, mortgages, pledges, security interests,
encumbrances or charges of any kind. Subject to the terms hereof,
the Corporation shall purchase all Warrant Shares held by
Warrantholder no later than ten (10) Business Days from the
Corporation's receipt, during the Put Exercise Period, of
Warrantholder's written notice of exercise of the Put Right, which
purchase shall be effective upon delivery of the purchase price
therefor (the “Put
Closing”).”
2. Leak
Out. Item (ii) of Section 5 of the Agreement is deleted in
its entirety and amended as follows:
“(ii)
Warrantholder shall not Transfer any of the Warrant Shares for less
than $3.8334 per share (as appropriately adjusted for any stock
split or reverse stock split, stock dividend, combination, or other
recapitalization or reclassification effected after July 9,
2018).”
3. Full
Force and Effect. Except as specifically amended, modified
or supplemented by this Amendment, the Agreement, as amended, shall
remain unchanged and in full force and effect.
4. Counterparts.
This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by electronic transmission
shall be as effective as delivery of a manually executed
counterpart hereof.
(Signatures on following page)
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
written above.
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CORPORATION:
FLUENT,
INC.
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By:
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/s/
Ryan Schulke
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Name: Ryan
Schulke
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Title: Chief
Executive Officer
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[Signatures
continue on following page]
[Signature
Page to First Amendment to Amendment to Warrants And Agreement to
Exercise]
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WARRANTHOLDER:
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H.I.G.
Whitehorse SMA ABF, LP
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By:
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/s/
Richard Siegel
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Name: Richard
Siegel
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Title:
Authorized Signatory
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[Signature
Page to First Amendment to Amendment to Warrants And Agreement to
Exercise]
Exhibit 4.2
FIRST AMENDMENT TO
AMENDMENT TO WARRANTS AND AGREEMENT TO EXERCISE
THIS FIRST AMENDMENT TO AMENDMENT TO WARRANTS AND
AGREEMENT TO EXERCISE (this “Amendment”)
is dated July 9, 2018 by and among Fluent, Inc., formerly known as
Cogint, Inc. (the “Corporation”)
and H.I.G. Whitehorse SMA Holdings I, LLC
(“Warrantholder”).
Capitalized terms used herein that are not otherwise defined shall
have the meanings set forth in the Warrants (defined
below).
RECITALS
WHEREAS, on October 7, 2016, the Corporation
issued to Warrantholder warrants to purchase, in aggregate,
sixty-six thousand six hundred sixty-six (66,666) shares of the
Corporation's Common Stock, par value $0.0005 per share (the
“Warrants”);
WHEREAS, on November 3, 2017, the Corporation and
Warrantholder entered into that certain Amendment to Warrants and
Agreement to Exercise (the “Agreement”),
lowering the Exercise Price of the Warrants on the terms set forth
therein; and
WHEREAS,
the Warrantholder exercised the Warrants pursuant to the terms of
the Agreement; and
WHEREAS,
the Corporation and Warrantholder have agreed to amend the put
right provided under the Agreement on the terms set forth
herein.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Put
Right. Section 7 of the Agreement is deleted in its entirety
and amended as follows:
“7.
PUT RIGHT.
Warrantholder shall have the right,
but not the obligation, to require the Corporation to purchase from
Warrantholder all Warrant Shares held by Warrantholder at a price
equal to $3.8334 per share (the “Put
Right”) on the terms and
conditions set forth herein. In order to exercise the Put Right,
Warrantholder shall provide the Corporation written notice thereof
at any time during the time period commencing January 1, 2019, and
ending 11:59 PM ET on December 15, 2019 (the
“Put Exercise
Period”). As a condition
precedent to the exercise of the Put Right and the Corporation's
obligation to consummate the Put Closing (as defined below),
Warrantholder shall own and possess the Warrant Shares free and
clear of any and all liens, mortgages, pledges, security interests,
encumbrances or charges of any kind. Subject to the terms hereof,
the Corporation shall purchase all Warrant Shares held by
Warrantholder no later than ten (10) Business Days from the
Corporation's receipt, during the Put Exercise Period, of
Warrantholder's written notice of exercise of the Put Right, which
purchase shall be effective upon delivery of the purchase price
therefor (the “Put
Closing”).”
2. Leak
Out. Item (ii) of Section 5 of the Agreement is deleted in
its entirety and amended as follows:
“(ii)
Warrantholder shall not Transfer any of the Warrant Shares for less
than $3.8334 per share (as appropriately adjusted for any stock
split or reverse stock split, stock dividend, combination, or other
recapitalization or reclassification effected after July 9,
2018).”
3. Full
Force and Effect. Except as specifically amended, modified
or supplemented by this Amendment, the Agreement, as amended, shall
remain unchanged and in full force and effect.
4. Counterparts.
This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by electronic transmission
shall be as effective as delivery of a manually executed
counterpart hereof.
(Signatures on following page)
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
written above.
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CORPORATION:
FLUENT,
INC.
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By:
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/s/
Ryan Schulke
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Name: Ryan
Schulke
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Title: Chief
Executive Officer
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[Signatures
continue on following page]
[Signature
Page to First Amendment to Amendment to Warrants And Agreement to
Exercise]
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WARRANTHOLDER:
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H.I.G.
Whitehorse SMA Holdings I, LLC
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By:
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/s/
Richard Siegel
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Name: Richard
Siegel
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Title:
Authorized Signatory
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[Signature
Page to First Amendment to Amendment to Warrants And Agreement to
Exercise]
Exhibit 4.3
FIRST AMENDMENT TO
AMENDMENT TO WARRANTS AND AGREEMENT TO EXERCISE
THIS FIRST AMENDMENT TO AMENDMENT TO WARRANTS AND
AGREEMENT TO EXERCISE (this “Amendment”)
is dated July 9, 2018 by and among Fluent, Inc., formerly known as
Cogint, Inc. (the “Corporation”)
and Whitehorse Finance, Inc. (“Warrantholder”).
Capitalized terms used herein that are not otherwise defined shall
have the meanings set forth in the Warrants (defined
below).
RECITALS
WHEREAS, on October 7, 2016, the Corporation
issued to Warrantholder warrants to purchase, in aggregate, one
hundred eighty-six thousand six hundred sixty-seven (186,667)
shares of the Corporation's Common Stock, par value $0.0005 per share (the
“Warrants”);
WHEREAS, on November 3, 2017, the Corporation and
Warrantholder entered into that certain Amendment to Warrants and
Agreement to Exercise (the “Agreement”),
lowering the Exercise Price of the Warrants on the terms set forth
therein; and
WHEREAS,
the Warrantholder exercised the Warrants pursuant to the terms of
the Agreement; and
WHEREAS,
the Corporation and Warrantholder have agreed to amend the put
right provided under the Agreement on the terms set forth
herein.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Put
Right. Section 7 of the Agreement is deleted in its entirety
and amended as follows:
“7.
PUT RIGHT.
Warrantholder shall have the right,
but not the obligation, to require the Corporation to purchase from
Warrantholder all Warrant Shares held by Warrantholder at a price
equal to $3.8334 per share (the “Put
Right”) on the terms and
conditions set forth herein. In order to exercise the Put Right,
Warrantholder shall provide the Corporation written notice thereof
at any time during the time period commencing January 1, 2019, and
ending 11:59 PM ET on December 15, 2019 (the
“Put Exercise
Period”). As a condition
precedent to the exercise of the Put Right and the Corporation's
obligation to consummate the Put Closing (as defined below),
Warrantholder shall own and possess the Warrant Shares free and
clear of any and all liens, mortgages, pledges, security interests,
encumbrances or charges of any kind. Subject to the terms hereof,
the Corporation shall purchase all Warrant Shares held by
Warrantholder no later than ten (10) Business Days from the
Corporation's receipt, during the Put Exercise Period, of
Warrantholder's written notice of exercise of the Put Right, which
purchase shall be effective upon delivery of the purchase price
therefor (the “Put
Closing”).”
2. Leak
Out. Item (ii) of Section 5 of the Agreement is deleted in
its entirety and amended as follows:
“(ii)
Warrantholder shall not Transfer any of the Warrant Shares for less
than $3.8334 per share (as appropriately adjusted for any stock
split or reverse stock split, stock dividend, combination, or other
recapitalization or reclassification effected after July 9,
2018).”
3. Full
Force and Effect. Except as specifically amended, modified
or supplemented by this Amendment, the Agreement, as amended, shall
remain unchanged and in full force and effect.
4. Counterparts.
This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by electronic transmission
shall be as effective as delivery of a manually executed
counterpart hereof.
(Signatures on following page)
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
written above.
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CORPORATION:
FLUENT,
INC.
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By:
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/s/
Ryan Schulke
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Name: Ryan
Schulke
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Title: Chief
Executive Officer
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[Signatures
continue on following page]
[Signature
Page to First Amendment to Amendment to Warrants And Agreement to
Exercise]
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WARRANTHOLDER:
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Whitehorse Finance,
Inc.
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By:
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/s/
Edward
J. Giordano
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Name:
Edward
J. Giordano
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Title:
Authorized Signatory
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[Signature
Page to First Amendment to Amendment to Warrants And Agreement to
Exercise]