As filed with the Securities and Exchange Commission on
June 17, 2016August 13, 2019
SECURITIES AND EXCHANGE COMMISSION
THE SECURITIES ACT OF 1933
IDI,
(Exact name of registrant as specified in its charter)
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| Delaware | | 77-0688094 |
(State or other jurisdiction of incorporation or organization) | | Identification No.)Number) |
2650 North Military Trail, Suite
300
Boca Raton, Florida 33431
(561) 757-4000
Vesey Street, 9th Floor
New York, New York 10282
Telephone: (646) 669-7272
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Joshua B. Weingard, Esq.
2650 North Military Trail, Suite
Ryan Schulke
Chief Executive Officer
300
Boca Raton, Florida 33431
(561) 757-4000
Vesey Street, 9th Floor
New York, New York 10282
Telephone: (646) 669-7272
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications to:
Michael Francis, Esq.
Akerman
John D. Tishler
Sheppard, Mullin, Richter & Hampton LLP
Las Olas Centre II,
12275 El Camino Real, Suite
1600350 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
(954) 463-2700
200
San Diego, CA 92130
Telephone: (858) 720-8943
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this registration statement.Registration Statement.
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
¨If any of the securities being registered on this formForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offeringoffered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer,
or a smaller reporting
company, or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,”
and “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange
Act.Act (Check one):
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| Large accelerated filer | | ¨☐ | | Accelerated filer | | x |
| Non-accelerated filer | | ¨☐ | | 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. ☐
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered | | Amount to be registered | | Proposed maximum offering price per share | | Proposed maximum aggregate offering price | | Amount of registration fee |
Common Stock, $0.0005 par value per share, underlying outstanding warrants | | 500,000 | | $8.00(1) | | $4,000,000(1) | | $403 |
Common Stock, $0.0005 par value per share | | 2,369,190 | | $4.53(2) | | $10,732,431(2) | | $1,081 |
TOTAL | | 2,869,190 | | | | $14,732,431 | | $1,484 |
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(1) | Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(i) of the Securities Act of 1933, based on the exercise price of the warrants. |
(2) | Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(c) of the Securities Act of 1933, based on the average of the high and low prices of the registrant’s common stock quoted on the NYSE MKT on June 14, 2016. |
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Title of each class of securities to be registered(1) | | Amount to be
registered(2) | | Proposed
maximum
offering price
per share(3) | | Proposed
maximum
aggregate offering price | | Amount of registration fee |
Common stock, par value $0.0005 per share(1) | | 1,565,443 | | $4.94 | | $7,733,288 | | $938 |
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| (1 | ) | All of the securities being registered hereby are offered for the account of certain selling security holders who acquired such securities in private transactions. |
| (2 | ) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional number of common stock as may be issuable from time to time as a result of stock splits, stock dividends, recapitalizations or similar events. |
| (3 | ) | Estimated solely for the purposes of calculating the registration fee. Pursuant to Rule 457(c) under the Securities Act, the registration fee has been calculated based upon the average of the high and low prices, as reported by the NASDAQ Capital Market, for our common stock on August 8, 2019. |
The information in this prospectus is not complete and may be changed. The selling security holders may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
whichthat specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act
of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information
Subject to Completion Dated August 13, 2019
Prospectus
FLUENT, INC.
1,565,443 Shares of Common Stock
This prospectus will be used from time to time by the selling security holders named in this prospectus is not complete andto resell up to 1,565,443 shares of common stock, which are issuable upon the exercise of outstanding warrants, which we refer to as the Securities. The selling security holders acquired the Securities in private offerings exempt from registration under the Securities Act.
The Securities may be changed. Theseoffered from time to time by the selling security holders on any stock exchange, market or trading facility on which the shares are traded or in private transactions, at fixed or negotiated prices, through one or more methods or means as described in the section entitled “Plan of Distribution” beginning on page 10 of this prospectus. We are not selling any securities mayunder this prospectus and will not receive any proceeds from the sale of the Securities by the selling security holders, although we could receive up to approximately $9.25 million upon exercise of outstanding warrants. Any amounts we receive from such exercises will be sold untilused for general corporate purposes. The selling security holders will bear all commissions and discounts, if any, attributable to the sale of Securities. We will bear all expenses incurred in registering the Securities for resale, including our legal and accounting fees.
Our common stock is traded on the Nasdaq Global Market (“NASDAQ”) under the symbol “FLNT.” The last reported sale price of our common stock on August 12, 2019 was $3.01 per share.
Investing in our securities involves risks. See “Risk Factors” beginning on page 3 of this prospectus. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THE DISCLOSURES IN THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2019.
TABLE OF CONTENTS
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| ABOUT THIS PROSPECTUS | |
| PROSPECTUS SUMMARY | |
| RISK FACTORS | |
| SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS | |
| USE OF PROCEEDS | |
| ISSUANCE OF SECURITIES TO SELLING SECURITY HOLDERS | |
| SELLING SECURITY HOLDERS | |
| DESCRIPTION OF COMMON STOCK | |
| PLAN OF DISTRIBUTION | |
| LEGAL MATTERS | |
| EXPERTS | |
| WHERE YOU CAN FIND MORE INFORMATION | |
| INCORPORATION OF CERTAIN INFORMATION BY REFERENCE | |
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission using a “shelf” registration process. Under this shelf registration process, the selling security holders may, from time to time, sell the Securities in one or more offerings or resales.
In certain circumstances, we may provide a prospectus supplement that will contain specific information about the terms of a particular offering by one or more of the selling security holders. We may also provide a prospectus supplement to add information to, or update or change information contained in, this prospectus. To the extent there is a conflict between the information contained in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus or any prospectus supplement — the statement in the later-dated document modifies or supersedes the earlier statement.
The rules of the SEC allow us to incorporate by reference information into this prospectus. This information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC, to the extent incorporated by reference, will automatically update and supersede this information. See “Incorporation of Certain Information by Reference” on page 15 of this prospectus. You should read both this prospectus and any applicable prospectus supplement together with the additional information about our company to which we refer you in “Where You Can Find More Information” on page 14 of this prospectus.
Neither we nor any agent or selling security holder has authorized any person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any related authorized free writing prospectus prepared by or on behalf of us or to which we have referred you. This prospectus, any applicable supplement to this prospectus or any related authorized free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus or any related authorized free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related authorized free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related authorized free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part,
becomes effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securitiesyou may obtain copies of those documents as described in
any state where the offer or sale is not permitted.Subject to Completion, Dated June 17, 2016
PROSPECTUS
IDI, Inc.
2,869,190 Shares“Where You Can Find More Information” on page 14 of Common Stock
This prospectus relates to (i) the issuance of up to 500,000 shares of our common stock upon the exercise of warrants (the “Warrant Shares”) and the resale of the Warrant Shares by the selling stockholders identifiedthis prospectus.
As used in this prospectus, unless the context indicates otherwise, the terms “we,” “our,” “us,” the “Company,” or “registrant” refer to Fluent, Inc. and (ii) the resale of 2,369,190 shares of our common stock issued pursuant to a Membership Interest Purchase Agreement dated as of June 8, 2016 with Selling Source, LLC (the “Purchase Shares”). We will not receive any proceedsincludes its subsidiaries and predecessors.
PROSPECTUS SUMMARY
This summary highlights selected information from
the sales of shares of our common stock by the selling stockholders. We will, however, receive $8.00 per share of proceeds from the exercise of the warrants.The common stock offered in this prospectus involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus to read about factors you should consider before buying shares of our common stock.
No underwriter or other person has been engaged to facilitate the sale of shares of our common stock in this offering. Each selling shareholder may be deemed an underwriter of the shares of our common stock that such selling shareholder is offering within the meaning of the Securities Act of 1933. We will bear all costs, expenses and fees in connection with the registration of these shares.
The selling stockholders may sell all or a portion of these shares from time to time in market transactions through any market on which our common stock is then traded, in negotiated transactions or otherwise, and at prices and on terms that will be determined by the then prevailing market price or at negotiated prices directly or through a broker or brokers, who may act as agent or as principal or by a combination of such methods of sale. The selling stockholders will receive all proceeds from the sale of the shares. We will receive proceeds from the exercise of the warrants, which proceeds will be used for working capital and other general corporate purposes. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution.”
Our common stock is traded on the NYSE MKT under the symbol “IDI.” On June 16, 2016, the last reported sales price of our common stock on the NYSE MKT was $4.70 per share.
Investing in our securities involves risks. You should read carefully and consider “Risk Factors” included in our most recent Annual Report on Form 10-K and our other filings with the Securities and Exchange Commission and on page 5 of this prospectus before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2016
TABLE OF CONTENTS
You should rely only on information contained in this prospectus. We have not authorized anyone to provide you with information that is different from that contained in this prospectus. We are not offering to sell or seeking offers to buy shares of common stock in jurisdictions where offers and sales are not permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common stock. We are responsible for updating this prospectus to ensure that all material information is included and will update this prospectus to the extent required by law.
PROSPECTUS SUMMARY
This summary only highlights the more detailed information appearing elsewhere in this prospectus or incorporated by reference in this prospectus. It maydoes not contain all of the information that is importantyou need to you.consider in making your investment decision. You should carefully read the entire prospectus, andespecially the documents incorporated by referencerisks of investing in our securities discussed under “Risk Factors” in this prospectus before deciding whether to invest in our securities. Unless otherwise indicated or the context requires otherwise, in this prospectusbeginning on page 3 and any prospectus supplement hereto references to “IDI,” “the Company,” “we,” “us,” and “our” refer to IDI, Inc. and its consolidated subsidiaries.
We are not, and the selling stockholders are not, making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or a prospectus supplement is accurate as of any date other than the date on the front of the document.
Our Company
IDI, Inc., a Delaware corporation, is a data and analytics company providing information and marketing solutions to businesses in a variety of industries. Through powerful analytics, we transform data into intelligence, in a fast and efficient manner, so that our clients can spend their time on what matters most — running their organizations with confidence. Through leading-edge, proprietary technology and a massive data repository, our data and analytical solutions harness the power of data fusion, uncovering the relevance of disparate data points and converting them into comprehensive and insightful views of people, businesses, assets and their interrelationships. We empower clients across markets and industries to better execute all aspects of their business.
The Company serves the risk management and the consumer marketing industries through its consolidated subsidiaries Interactive Data, LLC (“Interactive Data”) and Fluent, LLC (“Fluent”), respectively. Interactive Data provides information solutions to a broad and diverse set of industries including financial services, insurance, healthcare, corporate risk, law enforcement, government, collections, retail, and legal, for purposes including identity verification, location, due diligence, risk management, prevention and detection of fraud and abuse, legislative compliance, and debt recovery. Fluent provides people-based, digital marketing solutions to leading consumer brands and direct marketers utilizing Fluent’s proprietary audience data and technology to enable marketers to acquire their best customers, with precision, at a massive scale. We provide our services to organizations in the United States.
We provide unique and compelling solutions essential to the daily workflow of organizations within both the public and private sectors. Our next-generation, cloud-based data fusion platform, customer acquisition technology platform, proprietary algorithms, and massive database consisting of public record, proprietary, and publicly-available data, as well as a unique, first-party database of self-reported information on millions of consumers, enables the delivery of differentiated products and solutions used for a variety of essential functions throughout the customer life cycle — from customer identification and authentication, through investigation and validation, to customer acquisition and retention.
Our principal executive offices are located at 2650 North Military Trail, Suite 300, Boca Raton, Florida 33431 and our telephone number is (561) 757-4000. Our Internet website addresses arewww.ididata.com andwww.fluentco.com. The website addresses provided in this prospectus supplement are not intended to function as a hyperlink and information obtained on the websites is not and should not be considered part of this prospectus supplement and are not incorporated by reference in this prospectus supplement or any filing with the Securities and Exchange Commission (the “SEC”).
Recent Developments
On May 17, 2016, we raised approximately $5.0 million in gross proceeds from the sale of 1,000,000 shares of our common stock in a registered direct offering to certain accredited investors (the “Investors”). The purchase price paid by the Investors was $5.00 per share. Simultaneously, we conducted a private placement offering with the Investors through which we issued the Investors, for no additional consideration, warrants to purchase 500,000 shares of common stock. The warrants have an exercise price of $8.00 per share and are exercisable beginning six months and one day from the date of issuance (the “Exercise Date”), expiring 24 months from the Exercise Date.
Chardan Capital Markets, LLC (“Chardan Capital”) acted as placement agent for the offering. The net proceeds to IDI from the offering, after deducting placement agent fees and estimated offering expenses, were approximately $4.755 million. The registered direct offering and the concurrent private placement closed on May 23, 2016.
On June 8, 2016, we entered into and consummated the transactions contemplated by that certain Membership Interest Purchase Agreement (the “Purchase Agreement”) with Selling Source, LLC, a Delaware limited liability company (“Seller”), pursuant to which Seller sold to the Company all of the issued and outstanding membership interests (the “Membership Interests”) in Q Interactive, LLC, a Delaware limited liability company (the “Target”). As consideration for the Membership Interests, after adjustment for Target’s working capital at closing, we issued to Seller 2,369,190 shares (the “Purchase Shares”) of our common stock.
We are filing this registration statement as a result of our agreement with the Investors to register the issuance and resale of the Warrant Shares and our agreement with Seller to register Seller’s resale of the Purchase Shares.
THE OFFERING
Common stock outstanding prior to the offering:
| 50,613,476 shares |
Common stock to be issued upon exercise of the warrants and to be offered by the selling stockholders:
| 500,000 shares(1) |
Common stock to be offered by the selling stockholder in connection with the Purchase Shares:
| 2,369,190 shares(2) |
Common stock outstanding immediately following the offering:
| 51,113,476 shares(3) |
Use of proceeds:
| We will not receive any proceeds from the sale of the shares of common stock by the selling stockholders but will receive proceeds from the exercise of the warrants if the warrants are exercised, which proceeds will be used for working capital and other general corporate purposes, including funding future acquisitions. See “Use of Proceeds.” |
Risk Factors:
| See “Risk Factors” beginning on page 5 of this prospectus for a discussion of factors you should carefully consider before deciding to invest in shares of our common stock. |
Stock Symbol:
| NYSE MKT: IDI |
(1) | These shares are issuable upon the exercise of warrants. The shares are not presently issued or outstanding. |
(2) | These shares were issued pursuant to the Purchase Agreement. |
(3) | The number of shares of common stock to be outstanding after this offering assumes exercise of the warrants but excludes: |
12,903,078 shares of common stock underlying awards of restricted stock units (“RSUs”);
3,751,668 shares of common stock underlying vested RSUs, which have not been delivered;
472,000 shares of common stock issuable upon the exercise of outstanding stock options; and
520,103 shares of common stock issuable upon the exercise of outstanding warrants.
5,093 shares of common stock issuable pursuant to the Working Capital Adjustment in connection with the Fluent, LLC acquisition on December 8, 2015.
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus, including the documents that are incorporated by reference, contains “forward-looking statements” within the meaning of the safe harbor from civil liability provided for such statements by the Private Securities Litigation Reform Act of 1995. You can identify forward-looking statements by the use of words such as “anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,” “projects,” “seeks,” “should,” “will,” and variations of such words or similar expressions. Forward-looking statements in this prospectus, including the documents that are incorporated by reference, include, among others, statements about our future financial condition, results of operations, our business strategy and objectives, and expected liquidity needs and sources. Our forward-looking statements reflect our current views about our plans, intentions, expectations, strategies and prospects, which are based on the information currently available to us and on assumptions we have made. Although we believe that our plans, intentions, expectations, strategies and prospects as reflected in or suggested by our forward-looking statements are reasonable, we can give no assurance that our plans, intentions, expectations, strategies or prospects will be attained or achieved and you should not place undue reliance on these forward-looking statements. Furthermore, actual results may differ materially from those described in the forward-looking statements and may be affected by a variety of risks and factors including the factors included in our most recent Annual Report on Form 10-K and Quarterly ReportReports on Form 10-Q, including those set forth under the headings “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations;”
Any forward-looking statement speaks only as of the date on which it is made. New risks and uncertainties arise over time, and it is not possible for us to predict those events or how they may affect us. Exceptbe amended, and any accompanying prospectus supplement, as requiredwell as the risk factors discussed in the documents incorporated by law, we are not obligated to, and do not intend to, update or revise any forward-looking statements, whether as a resultreference herein. See “Where You Can Find More Information” on page 14 of new information, future events or otherwise. Accordingly, investors should use caution in relying on past forward-looking statements, which were based on results and trends at the time they were made, to anticipate future results or trends. Forthis prospectus for a further discussion on incorporation by reference.
Overview
Fluent, Inc. is a Delaware corporation formerly known as Cogint, Inc. We are an industry leader in data-driven digital marketing services. We primarily perform customer acquisition services by operating highly-scalable digital marketing campaigns, through which we connect our advertiser clients with consumers they are seeking to reach. We deliver data and performance-based marketing executions to our clients, which in 2018 included over 500 consumer brands, direct marketers and agencies across a wide range of industries, including Financial Services, Retail & Consumer, Media & Entertainment, Staffing & Recruitment and Marketing Services.
We attract consumers at scale to our owned digital media properties primarily through promotional offerings and employment opportunities. On average, our websites receive over 900,000 first-party user registrations daily, which include users’ names, contact information and opt-in permission to present them with offers on behalf of our clients. According to comScore, we reach 13% of the U.S. digital population on a monthly basis through our owned media properties. Nearly 90% of these users engaged with our media on their mobile devices or tablets. Our always-on, real-time capabilities enable users to access our media whenever and wherever they choose.
Once users have registered with our sites, we integrate proprietary direct marketing technologies to engage them with surveys, polls and other factorsexperiences, through which we learn about their lifestyles, preferences and purchasing histories. Based on these insights, we serve targeted, relevant offers to them on behalf of our clients. As new users register and engage with our sites and existing registrants re-engage, we believe the enrichment of our database enables expansion of our addressable client base and improves the effectiveness of our performance-based campaigns.
Since our inception, we have amassed a large, proprietary database of first-party, self-declared user information and preferences. We have permission to contact the majority of users in our database through multiple channels, such as email, home address, telephone, push notifications and SMS text messaging. We leverage our data primarily to serve advertisements that could impactwe believe will be relevant to users based on the information they have provided. We have also begun to leverage our future results, performance or transactions, seeexisting database into new revenue streams, including utilization-based models, such as programmatic advertising and identity resolution, as well as services-based models, such as marketing research and insights.
Corporate History
On March 20, 2015, the entity now known as Fluent, Inc. was incorporated in Delaware under the name Tiger Media, Inc. On April 30, 2015, Tiger Media, Inc. changed its name to IDI, Inc.
On December 9, 2015, IDI, Inc. completed the acquisition of Fluent, Inc., which merged into a wholly-owned subsidiary of IDI, Inc. and continued as the surviving company under the name Fluent, LLC. IDI, Inc. changed its name to Cogint, Inc. on September 26, 2016.
On March 26, 2018, Cogint, Inc. completed a spin-off of its risk management business by way of a pro rata distribution of all the shares of common stock of its wholly-owned subsidiary, Red Violet, Inc., to its stockholders of record as of March 19, 2018 and certain warrant holders.
Following the spin-off, Cogint, Inc.’s common stock continued trading on The NASDAQ Stock Market, and Red Violet became an independent public company, which owns all of the subsidiaries that previously operated Cogint Inc.'s risk management business.
On April 16, 2018, Cogint, Inc. changed its name to Fluent, Inc., and its common stock continued trading on NASDAQ under the ticker symbol “FLNT.”
The Offering
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| Securities offered by us | | None. | |
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| Common stock offered by selling security holders | | 1,565,443 shares.(1) | |
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| Common stock outstanding immediately prior to this offering | | 76,765,952 shares. (2) | |
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| Common stock outstanding immediately after this offering | | 76,765,952 shares. (2) (3) | |
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| Selling security holders | | All of the Securities are being offered by the selling security holders named herein. See “Selling Security Holders” on page 7 of this prospectus for more information. | |
| | |
| Plan of distribution | | The selling security holders may offer the Securities on any stock exchange, market or trading facility on which the shares are traded or in private transactions, at fixed or negotiated prices, through one or more methods or means as described in the section entitled “Plan of Distribution” beginning on page 10 of this prospectus. | |
| | |
| Use of Proceeds | | We will not receive any proceeds from the resale by the selling security holders of the Securities offered by this prospectus. We could, however, receive up to up to approximately $9.25 million upon exercise of outstanding warrants. Any amounts we receive from such exercises will be used for general corporate purposes. | |
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| Risk Factors | | An investment in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider all of the information in this prospectus and, in particular, you should evaluate the risk factors identified in this prospectus under “Risk Factors” beginning on page 3 of this prospectus. |
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| NASDAQ Symbol | | Our common stock is traded on NASDAQ Global Market under the symbol “FLNT.” |
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| (1 | ) | The shares of the common stock registered hereunder consist of 1,565,443 shares of the common stock issuable upon exercise of outstanding warrants. |
| (2 | ) | The number of shares of common stock outstanding is as of June 30, 2019, and excludes the following as of that date: |
| • | | 2,814,002 shares of common stock that have vested but have not yet been delivered; | |
| • | | 5,608,656 shares of common stock underlying awards of unvested Restricted Stock Units, or RSUs, and stock options; | |
| • | | 112,000 shares of common stock issuable upon the exercise of outstanding stock options; and | |
| • | | 2,398,776 shares of common stock issuable upon the exercise of outstanding warrants. | |
| (3 | ) | Assumes the exercise of all of the outstanding warrants registered hereunder. |
RISK FACTORS
Investment in the Securities involves risks. Before you invest in the Securities, you should carefully consider the risk factors below and those incorporated
into this prospectus by reference
from our most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q. RISK FACTORS
An investment in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should consider carefully the risks described below and discussed under the section captioned “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2015, which is2018 and the other information contained in this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934 and risk factors and other information contained in any applicable prospectus supplement. The occurrence of any of the events described in the risk factors might cause you to lose all or part of your investment in the Securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus in its entirety, as well as any amendment or update to our risk factors reflected in subsequent filings withcontain “forward-looking statements” within the SEC, together with other information in this prospectusmeaning of the Securities Act and the Exchange Act. These forward-looking statements contain information about our expectations, beliefs or intentions regarding our product development and documents incorporated by reference that we have authorized for use in connection with this offering. If any of these risks actually occur, ourcommercialization efforts, business, financial condition, results of operations, strategies or cash flows couldprospects, and other similar matters. These forward-looking statements are based on management's current expectations and assumptions about future events, which are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. These statements may be seriously harmed. Thisidentified by words such as "expects," "plans," "projects," "will," "may," "anticipates," "believes," "should," "intends," "estimates," and other words of similar meaning.
Many factors could cause
the trading price of our common stockactual results to
decline, resultingdiffer materially from those in
a loss of all or part of your investment.Risks Related to Our common stock and This Offering
Our stock price has been and may continue to be volatile, and the value of an investment in our common stock may decline.
The trading price of our common stock has been and will likely continue to be highly volatile and could be subject to wide fluctuations in response to various factors, some of which are beyond our control. These factors could include:
additions or departures of key personnel;
changes in governmental regulations orforward-looking statements, including those matters identified in the status“Risk Factors” section above.
Other unknown or unpredictable factors that could also adversely affect our business, financial condition and results of our regulatory approvals;
changes in earnings estimates or recommendations by securities analysts;
any major change in our board or management;
general economic conditions and slow or negative growth of our markets; and
political instability, natural disasters, war and/or events of terrorism.
From time to time, we estimate the timing of the accomplishment of various commercial and other product development goals or milestones. Also,operations may arise from time to time, we expect that we will publicly announcetime. Given these risks and uncertainties, the anticipated timing of some of these milestones. All of these milestones are based on a variety of assumptions. The actual timing of these milestones can vary dramatically compared to our estimates,forward-looking statements discussed in some cases for reasons beyond our control. If we do not meet these milestones as publicly announced, our stock price may decline.
In addition, the stock market has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of publicly traded companies. Broad market and industry factors may seriously affect the market price of companies’ stock, including ours, regardless of actual operating performance. These fluctuations may be even more pronounced in the trading market for our stock. In addition, in the past, following periods of volatility in the overall marketthis prospectus and the market price of a particular company’s securities, securities class action litigation has often been instituted against these companies. This litigation, if instituted against us, could resultdocuments incorporated by reference in substantial costs and a diversion of our management’s attention and resources.
Our management will have broad discretion as to the use of proceeds from the exercise of your warrants, and wethis prospectus may not useprove to be accurate. Accordingly, you should not place undue reliance on these forward-looking statements, which only reflect the proceeds effectively.
Ourviews of Fluent’s management will have broad discretion in the applicationas of the net proceeds fromdate of this prospectus or document incorporated by reference into this prospectus, respectively. We undertake no obligation to update or revise forward-looking statements to reflect changed assumptions, the exerciseoccurrence of your warrants and could spend the proceeds in ways that do not improve ourunanticipated events or changes to future operating results of operations or enhance the value of our common stock. You will not have the opportunity,expectations, except as part of your investment decision, to assess whether these proceeds are being used appropriately. Our failure to apply these funds effectively could have a material adverse effect on our business and cause the price of our common stock to decline.
We expect that we may need additional capital in the future; however, such capital may not be available to us on reasonable terms, if at all, when or as we require additional funding. If we issue additional shares of our common stock or other securities that may be convertible into, or exercisable or exchangeable for, our common stock, our existing stockholders may experience further dilution.
Although we expect that we may need additional capital in the future, we cannot be certain that it will be available to us on acceptable terms when required or at all. Disruptions in the global equity and credit markets may limit our ability to access capital. To the extent that we raise additional funds by issuing equity securities, our stockholders may experience dilution, which may be significant and could cause the market price of our common stock to decline significantly. Any debt financing, if available, may restrict our operations. If we are unable to raise additional capital when required or on acceptable terms, we may have to significantly delay, scale back or discontinue certain operations. Any of these events could significantly harm our business and prospects and could cause our stock price to decline.
law.
We are not selling any Securities under this prospectus and will not receive any proceeds from the sale of our Securities by the selling security holders, although we could receive up to approximately $9.25 million upon exercise of the warrants. Any amounts we receive from such exercises will be used for general corporate purposes, including working capital and general and administrative expenses.
ISSUANCE OF SECURITIES TO SELLING SECURITY HOLDERS
This prospectus covers securities which we issued in two separate transactions.
Additional Warrants issued to certain selling security holders. On October 17, 2017, we entered into that certain (i) First Amendment to Common Stock Purchase Warrant and Notice of Exercise with Intracoastal Capital, LLC (“Intracoastal”), regarding 166,667 warrants to purchase common stock, at an exercise price of $3.75 per share (the “Intracoastal $3.75 Warrant Amendment”); (ii) First Amendment to Common Stock Purchase Warrant and Notice of Exercise with Intracoastal regarding 250,000 warrants to purchase common stock at an exercise price of $8.00 per share (the “Intracoastal $8.00 Warrant Amendment”); (iii) First Amendment to Common Stock Purchase Warrant and Notice of Exercise with Intracoastal regarding 320,102 warrants to purchase common stock at an exercise price of $10.00 per share (the “Intracoastal $10.00 Warrant Amendment”); and (iv) First Amendment to Common Stock Purchase Warrant and Notice of Exercise with Anson Investments Master Fund LP (“Anson”) regarding 125,000 warrants to purchase common stock at an exercise price of $8.00 per share (individually, the “Anson Warrant Amendment,” and collectively with the Intracoastal $3.75 Warrant Amendment, the Intracoastal $8.00 Warrant Amendment, and the Intracoastal $10.00 Warrant Amendment, the “Warrant Amendments”), pursuant to which the Company agreed to reduce the exercise price of all common stock warrants described above to $3.00 per share, and Intracoastal and Anson separately agreed to exercise all common stock warrants held by them.
The Warrant Amendments also provide that the Company deliver to each of Anson and Intracoastal an additional warrant for Common Stock equal to twenty-five percent (25%) of the number of shares exercised pursuant to the applicable Warrant Amendment(s), at an exercise price of $5.35 per share (each, an “Additional Warrant,” and collectively, the “Additional Warrants”). The Additional Warrant provided to Intracoastal is exercisable into 184,193 shares of common stock. The Additional Warrant provided to Anson is exercisable into 31,250 shares of common stock. The Additional Warrants are exercisable from the date of issuance and expire on the earlier of the close of business on the two year anniversary of (i) the date the registration statement registering the resale of the underlying shares is declared effective by the Securities and Exchange Commission, or (ii) the commencement date that such Additional Warrant may be exercised by means of a “cashless exercise” pursuant to Section 1(c) thereof. The Company has agreed to register the resale of the shares of Common Stock underlying the Additional Warrants.
January 2018 Financing. On January 10, 2018, we entered into a definitive securities purchase agreement (the “July 2018 Purchase Agreement”) with certain qualified institutional buyers (the “Purchasers”) set forth on the signature pages of the July 2018 Purchase Agreement for the purchase and sale of an aggregate of 2,700,000 shares of the Company’s common stock in a registered direct offering for gross proceeds of $13.5 million. The purchase price paid by the Purchasers was $5.00 per share. Simultaneously, the Company conducted a private placement offering with the same Purchasers through which it issued to the Purchasers, for no additional consideration, warrants to purchase an aggregate of 1,350,000 shares of common stock (the “Placement Warrants”). The Placement Warrants have an exercise price of $6.00 per share and are exercisable from the date of issuance and expire on the earlier of the close of business on the two year anniversary of (i) the date the registration statement registering the resale of the underlying shares is declared effective by the Securities and Exchange Commission or (ii) the commencement date that the Placement Warrants may be exercised by means of a “cashless exercise” pursuant to Section 1(c) thereof.
This prospectus relates to the resale of the common stock underlying the Additional Warrants and the Placement Warrants.
SELLING SECURITY HOLDERS
An aggregate of 1,565,443 shares of common stock are being registered for resale by the selling
stockholders but will receive proceeds fromsecurity holders under this prospectus, all of which are issuable upon the exercise of
either (i) Additional Warrants or (ii) Placement Warrants held by the
selling security holders. With respect to the shares issuable upon exercise of warrants,
if thethere are (i) Additional Warrants to purchase 215,443 shares at an exercise price of $5.35 and Placement Warrants to purchase 1,350,000 shares at an exercise price of $6.00. For purposes of this prospectus, we have assumed that all outstanding warrants are exercised
for cash. For a full description of the terms of the warrants, see the forms of warrants, which
proceeds will be used for working capital and for other general corporate purposes, including funding potential future acquisitions.SELLING STOCKHOLDERS
The following table provides information aboutare incorporated by reference as exhibits to this Registration Statement.
To the extent permitted by law, the selling stockholders, listing how many shares of our common stocksecurity holders listed below may resell their Securities pursuant to this prospectus. We have registered Securities to permit the selling stockholders own onsecurity holders and their respective permitted transferees or other successors-in-interest that receive their Securities from the selling security holders after the date of this prospectus how many shares and how many may be issued upon the exercise of warrants covered by this prospectus, and the number and percentage of outstanding shares the selling stockholders will own after the offering, assuming all shares covered by this prospectus are sold. to resell their Securities.
The
information concerning beneficial ownership has been provided by the selling stockholders. Information concerning the selling stockholders may change from time to time, and any changed information will be setfollowing tables sets forth
if and when required in prospectus supplements or other appropriate forms permitted to be used by the SEC.We do not know when or in what amounts the selling stockholders may offer shares for sale, although the selling stockholders cannot exercise the warrants underlying the Warrant Shares registered herein before November 24, 2016. The selling stockholders may choose not to sell any or all of the shares offered by this prospectus. Because the selling stockholders may offer all or some of the shares, and because there are currently no agreements, arrangements or understandings with respect to the sale of any of the shares, we cannot accurately report the number of the shares that will be held by the selling stockholders after completion of the offering. However, for purposes of this table, we have assumed that, after completion of the offering, all of the shares covered by this prospectus will be sold by the selling stockholders.
Except to the extent that the Warrant Shares registered herein cannot be acquired or sold by the selling stockholders prior to November 24, 2016, as disclosed above, the selling stockholders may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time or from time to time since the date hereof, a portion of the shares beneficially owned in transactions exempt from the registration requirements of the Securities Act.
The number of shares outstanding, and the percentage of beneficial ownership, post-offering are based on 51,113,476 shares of our common stock issued and outstanding as of the conclusion of the offering, calculated on the basis of (i) 50,613,476 shares issued and outstanding as June 16, 2016 and (ii) assumed exercise and sale by the selling stockholders of all warrants underlying the Warrant Shares registered herein. For the purposes of the following table, the number of shares of common stock beneficially owned has been determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”), and such information is not necessarily indicative of beneficial ownership for any other purpose. Under Rule 13d-3, beneficial ownership includes any shares as to whichby the selling stockholders have sole or shared voting power or investment power and also any shares which each selling shareholder, respectively, has the right to acquire within 60 dayssecurity holders as of the date of this prospectus throughand the exercisenumber of shares of common stock being offered by the selling security holders. The selling security holders are not making any representation that any Securities covered by this prospectus will be offered for sale. The selling security holders reserve the right to accept or reject, in whole or in part, any proposed sale of Securities. The following table assumes that all of the Securities, as the case may be, being registered pursuant to this prospectus will be sold.
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to shares of common stock. Unless otherwise indicated below, to our knowledge, all persons named in the table have sole voting and investment power with respect to the Securities beneficially owned by them. The inclusion of any
stock option, warrant or other rights. NoSecurities in these tables does not constitute an admission of beneficial ownership for the person named below. Except as noted in the footnotes below, none of the selling
shareholdersecurity holders has had any
position, office or any other material relationship with
theour Company
or any of its predecessors or affiliates within the past three
years other than in connection with the transactions disclosed in the Recent Development section of this prospectus. | | | | | | | | | | | | | | | | |
Name | | Number of
securities
beneficially
owned before
offering(1) | | | Number of
securities
to be
offered(2) | | | Number of
securities
owned after
offering(3) | | | Percentage of
securities
beneficially
owned after
offering | |
Intracoastal Capital LLC(4) | | | 1,483,805 | | | | 250,000 | | | | 1,483,805 | | | | 2.9 | % |
Empery Asset Master, LTD(5) | | | 94,796 | | | | 47,398 | | | | 94,796 | | | | * | |
Empery Tax Efficient, LP(6) | | | 65,572 | | | | 32,786 | | | | 65,572 | | | | * | |
Empery Tax Efficient II, LP(7) | | | 89,632 | | | | 44,816 | | | | 89,632 | | | | * | |
Anson Investments Master Fund LP(8) | | | 250,000 | | | | 125,000 | | | | 250,000 | | | | * | |
Selling Source, LLC(9) | | | 2,369,190 | | | | 2,369,190 | | | | 0 | | | | 0 | % |
(1) | In addition to shares of common stock as described in footnote (2), also includes shares of common stock identified to us by the selling stockholders as owned. Pre-offering beneficial ownership does not include the Warrant Shares because the Warrant Shares cannot, under the terms of the warrants, be acquired by the selling stockholders within 60 days. |
(2) | The number of securities to be offered represents 500,000 shares of common stock issuable upon the exercise of warrants (the “Warrant Shares”) and 2,369,190 shares of common stock issued pursuant to the Purchase Agreement (the “Purchase Shares”). |
(3) | For purposes of this table, we have assumed that, after completion of the offering, all of the shares covered by this prospectus will be sold by the selling stockholders. The number of securities beneficially owned post-offering assumes the exercise of the warrants and acquisition and sale of the Warrant Shares in compliance with the terms of the warrants. |
(4) | Mitchell P. Kopin (“Mr. Kopin”) and Daniel B. Asher (“Mr.Asher”), each of whom are managers of Intracoastal Capital LLC (“Intracoastal”), have shared voting control and investment discretion over the securities reported herein that are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the securities reported herein that are held by Intracoastal. |
In the aggregate, Intracoastal may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of 1,733,805 of our ordinary shares, which consists of (i) 1,163,703 of our ordinary shares and (ii) 570,102 of our ordinary shares issuable upon exercise of warrants (250,000 offered in this prospectus).
Mr. Asher, who is a manager of Intracoastal, is also a control person of a broker-dealer. As a result of such common control, Intracoastal may be deemed to be an affiliate of a broker-dealer. Intracoastal acquired the ordinary shares being registered hereunder in the ordinary course of business, and at the time of the acquisition of the ordinary shares and warrants described herein, Intracoastal did not have any arrangements or understandings with any person to distribute such securities.
(5) | Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd (“EAM”), has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of EAM’s address is c/o Empery Asset Management, LP, 1 Rockefeller Plaza, Suite 1205, New York, New York 10020. |
(6) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP (“ETE”), has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of ETE’s address is c/o Empery Asset Management, LP, 1 Rockefeller Plaza, Suite 1205, New York, New York 10020. |
(7) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient II, LP (“ETE II”), has discretionary authority to vote and dispose of the shares held by ETE II and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE II. ETE II, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares ETE II’s address is c/o Empery Asset Management, LP, 1 Rockefeller Plaza, Suite 1205, New York, New York 10020. |
(8) | M5V Advisors Inc and Frigate Ventures LP (“M5V” and “Frigate”), the Co-Investment Advisers of Anson Investments Master Fund LP (“Anson”), hold voting and dispositive power over the Common Shares held by Anson. Bruce Winson is the managing member of Admiralty Advisors LLC, which is the general partner
|
| of Frigate. Moez Kassam and Adam Spears are directors of M5V. Mr. Winson, Mr. Kassam and Mr. Spears each disclaim beneficial ownership of these Common Shares except to the extent of their pecuniary interest therein. The principal business address of Anson is 190 Elgin Ave; George Town, Grand Cayman |
(9) | Selling Source, LLC (“Seller”) has indicated that London Bay Capital, LLC exercises voting and investment control with respect to the Purchase Shares and is deemed to have beneficial ownership over the securities held by Seller. Seller’s address is 325 E. Warm Springs Road, Las Vegas, Nevada 89119. |
years.
|
| | | | | | | | | | | | | | | | | | | | |
| Name of Selling Security Holder | Number of Shares Beneficially Owned Prior to the Offering | Voting % | Number of
Shares
Offered | Number of
Shares
Beneficially
Owned
After the
Offering | Voting
% | |
Common
Shares | Warrant
Shares(1) | Total |
| Anson Investments Master Fund (2) | | — |
| | 31,250 | | 31,250 |
| | * | | 31,250 | | — |
| | — |
| |
| Intracoastal Capital (3) | | — |
| | 784,193 | | 784,193 |
| | * | | 784,193 | | — |
| | — |
| |
| OTA, LLC (4) | | — |
| | 500,000 | | 500,000 |
| | * | | 500,000 | | — |
| | — |
| |
| Superius Securities Group Inc. Profit Sharing Plan (5) | | 261,269 |
| | 250,000 | | 511,269 |
| | * | | 250,000 | | 261,269 |
| | * |
| |
| * | Less than one percent. | |
| (1) | Represents the number of shares of common stock issuable upon the exercise of warrants held by such holder. |
| (2) | Anson Advisors Inc. and Anson Funds Management LP, the Co-Investment Advisers of Anson Investments Master Fund LP (“Anson”), hold voting and dispositive power over the Securities that are held by Anson. Bruce Winson is the managing member of Anson Management GP LLC, which is the general partner of Anson Funds Management LP. Moez Kassam and Amin Nathoo are directors of Anson Advisors Inc. Mr. Winson, Mr. Kassam and Mr. Nathoo each disclaim beneficial ownership of the Securities except to the extent of their pecuniary interest therein. The principal business address of Anson is 190 Elgin Ave, George Town, Grand Cayman. |
| (3) | Mitchell P. Kopin and Daniel B. Asher, each of whom are managers of Intracoastal Capital LLC (“Intracoastal”), have shared voting control and investment discretion over the Securities that are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the Securities reported herein that are held by Intracoastal. The address for Intracoastal is 2211A Lakeside Drive, Bannockburn, Illinois 60015.
|
| (4) | Ira M. Leventhal, a senior managing director of OTA LLC (“OTA”), has voting and investment control over the Securities. As a result, Mr. Leventhal may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the Securities that are held by OTA LLC. The address for OTA is One Manhattanville Road, Purchase, New York 10577. OTC is a registered broker-dealer and, as such, may be deemed an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Any discount, commission, concession or profit it earns on any resale of Securities may be underwriting discounts and commissions under the Securities Act.
|
| (5) | James H. Hudgins has voting and investment control over the Securities held by the Superius Securities Group Inc. Profit Sharing Plan (“Superius”). As a result, Mr. Hudgins may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the Securities that are held by Superius. The address for Superius is 94 Grand Ave, Englewood NJ 07631.
|
DESCRIPTION OF
CAPITALCOMMON STOCK
We are authorized to issue 200,000,000 shares of common stock, par value $0.0005 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share.
Common Stock
We are authorized to issue 200,000,000 shares of common stock, par value $0.0005 per share.
The holders of common stock are entitled to one vote per share on all matters submitted to a vote of stockholders, including
the election of directors. There is no cumulative voting in the election of directors. In the event of our liquidation or dissolution, holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock. Holders of common stock have no preemptive rights and have no right to convert their common stock into any other securities and there are no redemption provisions applicable to our common stock.
The holders of common stock are entitled to any dividends that may be declared by the Board of Directors out of funds legally available for payment of dividends subject to the prior rights of holders of preferred stock and any contractual restrictions we have against the payment of dividends on common stock. We have not paid dividends on our common stock since inception and do not plan to pay dividends on our common stock in the foreseeable future.
As of June 16, 2016, IDI had 50,613,476August 12, 2019, we have 76,765,952 shares of common stock outstanding. In addition, IDI haswe have entered agreements pursuant to which, subject to certain vesting and delivery conditions, IDIwe may issue an additional 17,126,74610,916,767 shares of common stock underlying restricted stock units, warrants and stock options. We are authorized to issue 10,000,000 shares of “blank check” preferred stock with designations, rights and preferences as may be determined from time to time by our Board of Directors.
As of June 16, 2016, we had no shares of any class of preferred stock outstanding.For a description of how future issuances of our preferred stock could affect the rights of our stockholders, see “Certain Provisions of Delaware Law and of Our Charter and Bylaws — Issuance of blank check Preferred Stock,” below.
Transfer Agent
We have appointed Continental Stock Transfer & Trust as our transfer agent. Their contact information is: 17 Battery Place, New York, NY 10004, phone number (212) 845-3249, www.continentalstock.com.
CERTAIN PROVISIONS OF DELAWARE LAW AND OF OUR CHARTER AND BYLAWS
Anti-takeover Provisions
In general, Section 203 of the Delaware General Corporations Law or the DGCL prohibits a Delaware corporation with a class of voting stock listed on a national securities exchange or held of record by 2000 or more
stockholders from engaging in a “business combination” with an “interested shareholder” for a three-year period following the time that this shareholder becomes an interested shareholder, unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested shareholder. An “interested shareholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested shareholder status, 15% or more of the corporation’s voting stock. Under Section 203, a business combination between a corporation and an interested shareholder is prohibited unless it satisfies one of the following conditions:
before the shareholder became interested, the board of directors approved either the business combination or the transaction which resulted in the shareholder becoming an interested shareholder;
upon consummation of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances; or
at or after the time the shareholder became interested, the business combination was approved by the board of directors of the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested shareholder.
The DGCL permits a corporation to opt out of, or choose not to be governed by, its anti-takeover statute by expressly stating so in its original certificate of incorporation (or subsequent amendment to its certificate of incorporation or bylaws approved by its stockholders). IDI’s Certificate of Incorporation contains a provision expressly opting out of the application of Section 203 of the DGCL; therefore the anti-takeover statute does not apply to us.
Issuance of “blank check” preferred stock
Our Certificate of Incorporation authorizes the issuance of up to 10,000,000 shares of “blank check” preferred stock with designations, rights and preferences as may be determined from time to time by our Board of Directors. Our BoardDirectors is empowered, without shareholder approval, to issue a series of preferred stock with dividend, liquidation, conversion, voting or other rights which could dilute the interest of, or impair the voting power of, our common stockholders. The issuance
As of a seriesAugust 12, 2019, no shares of preferred stock could beare outstanding.
Transfer Agent
We have appointed Continental Stock Transfer & Trust as our transfer agent. Their contact information is: 17 Battery Place, New York, NY 10004, phone number (212) 845-3249, www.continentalstock.com.
PLAN OF DISTRIBUTION
The selling security holders which as used
as a method of discouraging, delayingherein includes their pledgees, donees, transferees assignees and successors, may from time to time offer and sell some or
preventing a change in control. For example, it would be possible for our Board of Directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to effect a change in control of our company.Our Bylaws also allow our Board of Directors to fix the number of directors. Our stockholders do not have cumulative voting in the election of directors.
Special Shareholder Meetings and Action by Written Consent
Under our Bylaws, the Chairperson of our Board of Directors, our President and a majorityall of the membersshares of common stock covered by this prospectus. To the extent required, this prospectus may be amended and supplemented from time to time to describe a specific plan of distribution.
Any or all of the
Board of Directorsselling security holders may
each calloffer the Securities from time to time, either in increments or in a
special meeting of stockholders. Our Bylaws do not permit meetings of stockholders to be called by any other person. Our Certificate of Incorporation specifically prohibits action by our stockholders by written consent without a meeting of stockholders.Any aspect of the foregoing, alone or together, could delay or prevent unsolicited takeovers and changes in control or changes in our management.
PLAN OF DISTRIBUTION
single transaction. The selling stockholderssecurity holders may also decide not to sell all the Securities they are allowed to sell under this prospectus. The selling security holders will act independently of us in making decisions with respect to the timing, manner and size of each sale.
The selling security holders and any of
the selling stockholders’their pledgees,
donees, transferees, assignees and successors-in-interest may, from time to time, sell any or all of their
securities covered herebySecurities on
the principal Trading Market or any
other stock exchange, market or trading facility on which the
securitiesSecurities are traded
or quoted, in the over the counter market or in private transactions. These sales may be at
market prices prevailing at the time of sale, at prices related to such prevailing market prices, at fixed
prices or negotiated prices. The selling
stockholderssecurity holders may use any one or more of the following methods when selling
securities:the Securities: |
| | | |
| • | | ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
| • | | block trades in which a broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| • | | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | | privately negotiated transactions; |
| • | | to cover short sales made after the date that this registration statement becomes effective; |
| • | | an agreement with broker-dealers to sell as agent for the selling security holders a specified number of such shares at a stipulated price per share or otherwise at the prevailing market price; |
| • | | through put or call options, including the writing of exchange-traded call options, or other hedging transactions related to ordinary shares; |
| • | | a combination of any such methods of sale; and |
| • | | any other method permitted pursuant to applicable law. |
Certain of the selling security holders may enter into hedging transactions from time to time in which the broker-dealer solicits purchasers;
block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
an exchange distribution in accordance with the rules of the applicable exchange;
privately negotiated transactions;
in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security;security holder may:
a combination of any such methods of sale; orany other method permitted pursuant to applicable law. |
| | | |
| • | | enter into transactions with a broker-dealer or any other person in connection with which such broker-dealer or other person will engage in short sales of Securities, in which case such broker-dealer or other person may use Securities received from the selling security holder to close out its short positions; |
| • | | sell Securities short and re-deliver Securities offered by this prospectus to close out its short positions or to close out stock loans incurred in connection with its short positions; |
| • | | enter into option or other types of transactions that require the selling security holder to deliver Securities to a broker-dealer or any other person, who will then resell or transfer the Securities under this prospectus; or |
| • | | loan or pledge the Securities to a broker-dealer or any other person, who may sell the loaned Securities or, in an event of default in the case of a pledge, sell the pledged Securities under this prospectus. |
The selling
stockholderssecurity holders may also sell
securitiesSecurities under
any available exemption to the registration requirements of the Securities Act, including but not limited to Rule 144
and Regulation S under the Securities Act,
if available, rather than under this prospectus.
Resales by selling security holders may be made directly to investors or through securities firms acting as underwriters, brokers or dealers. Broker-dealers engaged by the selling stockholderssecurity holders may arrange for other brokers-dealersbroker-dealers to participate in sales. Broker-dealersWhen resales are to be made through a securities firm, the securities firm may be engaged to act as the selling security holder’s agent in the resale of the Securities by the selling security holder, or the securities firm may purchase Securities from the selling security holder as principal and thereafter resell those Securities from time to time. Securities firms may, to the extent permissible, receive commissions, concessions or discounts from the selling stockholderssecurity holders (or, if any broker-dealer acts as agent for athe purchaser of securities,Securities, from the purchaser) in amounts to be negotiated, but, except as set forthnegotiated.
Under the securities laws of some states, the Securities may be sold in a supplement to this Prospectus,such states only through registered or licensed brokers or dealers. In addition, in some states the case ofSecurities may not be sold unless such Securities have been registered or qualified for sale in such state or an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440;exemption from registration or qualification is available and inis complied with.
There can be no assurance that the
case of a principal transaction a markupselling security holders will sell any or
markdown in compliance with FINRA IM-2440.In connection with the saleall of the securities or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resellSecurities registered pursuant to this registration statement.
Certain of the selling security holders may from time to time pledge or grant a security interest in some or all of the Securities owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell Securities from time to time under this prospectus,
(as supplemented or
amendedunder an amendment to
reflect such transaction).this prospectus or a prospectus supplement to include the pledgee, transferee or other successors in interest as selling security holders under this prospectus.
The selling
stockholderssecurity holders (which may include OTA, LLC, one of the selling security holders and a registered broker-dealer) and any broker-dealers or agents that are involved in selling the
securitiesSecurities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the
securitiesSecurities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
EachDiscounts, concessions, commissions and similar selling
shareholder has informed the Companyexpenses, if any, that
it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.The Company is required to pay certain fees and expenses incurred by the Company incidentcan be attributed to the registrationsale of the securities. The Company has agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities maysold hereunder will be resoldpaid by the selling stockholders without registration and without regard to any volume security holder and/or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant topurchasers.
If a selling security holder uses this prospectus
or Rule 144 under thefor any sale of Securities,
Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholdersit will be subject to the prospectus delivery requirements of the Securities Act. The selling security holders will be responsible for complying with the applicable provisions of the Securities Act and Exchange Act, and the rules and regulations thereunder promulgated, including, without limitation, Regulation M, whichas applicable to such selling security holders in connection with resales of their respective Securities under this prospectus. Regulation M may limit the timing of purchases and sales of any of the common stockSecurities by the selling stockholders orsecurity holders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the Securities to engage in market-making activities with respect to the Securities. All of the foregoing may affect the marketability of the Securities and the ability of any person or entity to engage in market-making activities with respect to the Securities.
We will
make copiespay all expenses of
this prospectus available tothe registration of the resale of the Securities, including, without limitation, SEC filing fees and expenses of compliance with federal securities or state “blue sky” or securities laws; provided, however, that the selling
stockholderssecurity holders will pay all discounts and
have informed thecommissions, if any, to underwriters, selling
stockholders of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172brokers, dealer managers and similar persons. Insofar as indemnification for liabilities arising under the Securities
Act).LEGAL MATTERS
The validityAct may be permitted to directors, officers or persons controlling our Company pursuant to the foregoing provisions, we have been informed that in the opinion of the securities offered herebySEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
LEGAL MATTERS
The legality of the Securities in respect of which this prospectus is being delivered will
be passed on for us by Sheppard, Mullin, Richter & Hampton LLP, New York, New York. Additional legal matters may be passed upon for us
or any underwriters, dealers or agents by
Akerman LLP, Fort Lauderdale, Florida.counsel that we will name in the applicable prospectus supplement.
The
2015 audited financial statements and
management’smanagement's assessment of the effectiveness of internal control over financial reporting incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information reporting requirements of the Exchange Act and, in accordance with these requirements, we are required to file periodic reports and other information with the SEC. The consolidated financialSEC maintains an Internet website at www.sec.gov that contains our filed reports, proxy and information statements, and other information we file electronically with the SEC.
Fluent’s principal executive offices are located at 300 Vesey Street, 9th Floor, New York, New York 10282, and our telephone number is (646) 669-7272. Our internet website is www.fluentco.com. The website address provided in this prospectus is not intended to function as a hyperlink and information obtained on the website is not and should not be considered part of IDI Holdings, LLCthis prospectus and is not incorporated by reference in this prospectus foror any filing with SEC.
Additionally, we make our SEC filings available, free of charge, on our website at http://investors.fluentco.com/ as soon as reasonably practicable after we electronically file such materials with, or furnish them to, the
period from September 22, 2014 (inception) through December 31, 2014 have been audited by RBSM LLP, an independent registered public accounting firm, as set forth in their report incorporated by reference, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.The audited historical consolidated financial statements of Fluent, Inc., which include: (1) the consolidated balance sheet as of December 8, 2015 and the related consolidated statements of loss and comprehensive loss, changes in stockholders’ equity and cash flows for the period from January 1, 2015 through December 8, 2015 included as an exhibit to our Annual Report on Form 10-K dated March 18, 2016 and (2) the consolidated balance sheet as of December 31, 2014 and the related consolidated statements of loss and comprehensive loss, changes in stockholders’ equity and cash flows for the year then ended included as an exhibit to our Current Report on Form 8-K dated December 2, 2015, have been so incorporated in reliance on the reports of EisnerAmper LLP, independent registered public accountants, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Fluent, Inc. and subsidiaries as of December 31, 2013 and for the years ended December 31, 2013 and 2012 included as an exhibit to our Current Report on Form 8-K dated December 2, 2015 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such financial statements have been incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
SEC.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is
an importantconsidered to be part of this prospectus, and
later information that we file
later with the SEC will automatically update and supersede this information. We incorporate by reference the
following documents
listed below and their amendments, except information furnished under Item 2.02 or Item 7.01 of Form 8-K, which is neither deemed filed
with the SEC:our Annual Report on Form 10-K for the year ended December 31, 2015, filednor incorporated by reference herein and any future filings made with the SEC on March 18, 2016;
our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016, filed with the SEC on May 5, 2016;
our Definitive Proxy Statement on Schedule 14A for our 2016 Annual Meeting of Stockholders, filed with the SEC on April 29, 2016;
our Current Reports on Form 8-K filed with the SEC on December 2, 2015, January 15, 2016, January 19, 2016, February 29, 2016, March 15, 2016, March 17, 2016, April 4, 2016, May 18, 2016 and May 23, 2016, June 6, 2016, and June 8, 2016; and
the description of our Common Stock contained in the Form F-3 filed with the SEC on September 1, 2011, as updated by the Current Report on Form 8-K filed with the SEC on March 26, 2015, and any amendments and reports filed for the purpose of updating such description.
All reports and other documents that we subsequently file pursuant tounder Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until this offering is completed:
|
| | | |
| • | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the SEC on March 18, 2019; |
| • | Our Quarterly Report on Form 10-Q for the three months ended March 31, 2019, filed with the SEC on May 10, 2019; |
| • | Our Quarterly Report on Form 10-Q for the three months ended June 30, 2019, filed with the SEC on August 9, 2019; |
| • | Our Current Reports on Form 8-K filed with the SEC on February 5, 2019, February 19, 2019, June 10, 2019, June 19, 2019 and July 8, 2019; |
| • | The description of our capital 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 June 17, 2016. |
We also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of
this offering, but excluding any information furnished to, rather than filed with, the
SEC, will also be incorporated by reference into this prospectusoffering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
deemed to be part of this prospectus from the time of the filing of such reports and documents.Current Reports on Form 8-K, as well as proxy statements.
This prospectus as further supplemented may contain information that updates, modifies or is contrary to information in one or more of the documents incorporated by reference in this prospectus. You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents incorporated by reference in this prospectus, respectively.
We will provide, without charge, to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus, other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus incorporates. You should direct written requests to:
IDI,Fluent, Inc., Attn: Legal Department,
2650 North Military Trail, Suite 300
Boca Raton, Florida 33431,Vesey Street, 9th Floor New York, NY 10282, or you may call us at
(561) 757-4000.(646) 669-7272.
FLUENT, INC.
1,565,443 Shares of Common Stock
PROSPECTUS
, 2019
Neither we nor any agent or selling security holder has authorized any person to give any information or to make any representations other than those contained in this prospectus, any prospectus supplement or any related authorized free writing prospectus prepared by or on behalf of us or to which we have referred you. You must not rely on any unauthorized information. This prospectus is not an offer to sell these securities in any jurisdiction where an offer or sale is not permitted. The information in this prospectus is current as of the date of this prospectus. You should not assume that this prospectus is accurate as of any other date.
PART
IIII. INFORMATION NOT REQUIRED IN PROSPECTUS
Other Expenses of Issuance and Distribution.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs andestimated expenses payable by us in connection with the issuance and distribution of the securitiesSecurities being registered hereunder. No expenses shallhereby, all of which will be borne by the Company (other than any underwriting discounts, commissions and transfer taxes, which will be borne by the selling stockholders. security holders). Other than the SEC registration fee, all of the amounts listed are estimates.
All of the amounts shown are
estimates, except for the SEC Registration Fees. | | | | |
SEC registration fees | | $ | 1,484 | |
Printing expenses | | $ | 5,000 | |
Accounting fees and expenses | | $ | 45,000 | |
Legal fees and expenses | | $ | 25,000 | |
| | | | |
Total | | $ | 76,484 | |
| | | | |
Indemnification of Directors and Officers.
estimates.
|
| | | | | |
| | | | | |
| Registration Fee | | $ | 938 |
| |
| Accountants’ Fees | | | 15,000 |
| |
| Legal Fees and Expenses | | | 25,000 |
| |
| Printing and Miscellaneous Expenses | | | 1,062 |
| |
| Total | | $ | 42,000 |
| |
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the DGCL, which
IDIFluent 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
IDIFluent 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
II-1
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.
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
IDI’sFluent’s Bylaws provide that directors, officers, employees and agents shall be indemnified to the fullest extent permitted by the DGCL. Article 10 of
IDI’sFluent’s Certificate of Incorporation also provides that directors shall be indemnified to the fullest extent permitted by the DGCL.
IDI
Fluent 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
IDIFluent and its subsidiaries for sums paid to directors and officers as indemnification for similar liability.
IDIFluent 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 of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise,
IDIFluent has been advised that in the opinion of the
CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Exhibits 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 Financial Statement Schedules.
will be governed by the final adjudication of such issue.
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this registration statement:
|
| | | | | |
Exhibit No.
| | Description
|
| |
2.1 | Exhibit No. | | Merger Agreement and PlanDescription |
| 3.1 | | Certificate of Reorganization by and among The Best One, Inc., Tiger Media, Inc., TBO Acquisition, LLC, and Derek Dubner, solely in his capacity as representative, dated December 14, 2014Domestication (incorporated by reference to Exhibit 4.13.1 to IDI’s current reportthe Company’s Current Report on Form 6-K8-K filed December 18, 2014) |
| March 26, 2015). |
2.2 | 3.2 | | First Amendment to Merger Agreement and PlanCertificate of Reorganization by and among The Best One, Inc., Tiger Media, Inc., TBO Acquisition, LLC, and Derek Dubner, solely in his capacity as representative, dated December 18, 2014Incorporation (incorporated by reference to Exhibit 4.23.2 to IDI’s current reportthe Company’s Current Report on Form 6-K8-K filed December 18, 2014) |
| March 26, 2015). |
2.3 | 3.3 | | Second Amendment to Merger Agreement and PlanCertificate of Reorganization by and among The Best One, Inc., Tiger Media, Inc., TBO Acquisition, LLC, and Derek Dubner, solely in his capacity as representative, dated February 13, 2015Designation of Series A Non-Voting Convertible Preferred Stock (incorporated by reference to Exhibit 4.13.4 to IDI’s current reportthe Company’s Current Report on Form 6-K8-K filed on February 13,March 26, 2015) |
II-2
| | . |
Exhibit No.
| 3.4 | | Description
|
| |
2.4 | | Asset Purchase Agreement by |
| May 1, 2015). |
2.5 | 3.5 | | Agreement and PlanCertificate of Merger dated asDesignation of November 16, 2015, by and among IDI, Inc., Fluent, Inc., the existing stockholders of Fluent, Inc., Fluent Acquisition I, Inc., Fluent Acquisition II, LLC and Ryan Schulke, solely in his capacity as representative of Sellers.Series B Non-Voting Convertible Preferred Stock (incorporated by reference to Exhibit 2.13.1 to IDI’sthe Company’s Current Report on Form 8-K filed November 19, 2015). |
| |
2.6 | 3.6 | | Amendment No. 1 to Agreement and PlanCertificate of Merger dated December 8, 2015, by and among IDI, Inc., Fluent, Inc., the existing stockholdersDesignation of Fluent, Inc., Fluent Acquisition I, Inc., Fluent Acquisition II, LLC and Ryan Schulke, solely in his capacity as representative of SellersSeries A Non-Voting Convertible Preferred Stock (incorporated by reference to Exhibit 2.2 to IDI’s Current Report on Form 8-K filed December 10, 2015). |
| |
2.7 | | Membership Interest Purchase Agreement dated June 8, 2016, by and among Selling Source, LLC and IDI, Inc. (incorporated by reference to Exhibit 2.13.1 to the Company’s Current Report on Form 8-K filed June 8,on March 17, 2016). |
| |
| | 3.7 | | |
| 3.8 | | |
| 3.9 | | |
| 4.1 | | |
| |
| | 4.2 | | |
| |
| | 4.3 | | Securities Purchase Agreement dated as of November 16, 2015, by and between IDI, Inc. and Frost Gamma Investments Trust (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed November 19, 2015). |
| |
4.4 | | Warrant issued to Frost Gamma Investments Trust, dated as of November 16, 2015 (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed November 19, 2015). |
| |
4.5 | | Stock Purchase Agreement dated as of November 16, 2015, by and between IDI, Inc. and Frost Gamma Investments Trust (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed November 19, 2015). |
| |
4.6 | | Warrant issued to Whitehorse Finance, Inc., dated as of December 8, 2015 (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.7 | | Warrant issued to H.I.G. Whitehorse SMA ABF, Inc., dated as of December 8, 2015 (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.8 | | Warrant issued to Whitehorse Holdings II, LLC, dated as of December 8, 2015 (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.9 | | Promissory Note made by IDI, Inc. in favor of Frost Gamma Investments Trust, dated as of December 8, 2015, with accompanying Fee Letter (incorporated by reference to Exhibit 4.4 of the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.10 | | Promissory Note made by IDI, Inc. in favor of Michael Brauser, dated as of December 8, 2015, with accompanying Fee Letter (incorporated by reference to Exhibit 4.5 of the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.11 | | Promissory Note made by IDI, Inc. in favor of Barry Honig, dated as of December 8, 2015, with accompanying Fee Letter (incorporated by reference to Exhibit 4.6 of the Company’s Current Report on Form 8-K filed December 10, 2015). |
II-3
| | |
Exhibit No.
| | Description
|
| |
4.12 | | Subordination Agreement, dated December 8, 2015, by and among IDI, Inc., Fluent, LLC, substantially all of the direct and indirect subsidiaries of IDI, Inc., Frost Gamma Investments Trust, Michael Brauser, Barry Honig, and Whitehorse Finance, Inc. (incorporated by reference to Exhibit 4.7 of the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.13 | | Stockholders’ Agreement, dated as of December 8, 2015, by and among IDI, Inc., the selling stockholders of Fluent, Inc., Frost Gamma Investments Trust, James Reilly, Derek Dubner, Marlin Capital Investments, LLC, and Michael Brauser. (incorporated by reference to Exhibit 4.8 to the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.14 | | Registration Rights Agreement, dated as of December 8, 2015, by and among IDI, Inc. and the selling stockholders of Fluent, Inc. (incorporated by reference to Exhibit 4.9 to the Company’s Current Report on Form 8-K filed December 10, 2015). |
| |
4.15 | | |
| |
4.16 | 4.4 | | |
| 4.5 | | |
| 4.6 | | |
| 4.7 | | |
| 4.8 | | |
| 4.9 | | |
| 4.10 | | |
| 5.1* | | |
| 23.1* | | |
| 23.2* | | |
| 24.1* | | |
| * | Filed herewith. | |
|
| |
5.1ITEM 17. | | Legal Opinion of Akerman LLP* |
| |
23.1 | | Consent of Grant Thornton LLP* |
| |
23.2 | | Consent of RBSM LLP* |
| |
23.3 | | Consent of EisnerAmper LLP* |
| |
23.4 | | Consent of Ernst & Young LLP* |
| |
23.5 | | Consent of Akerman LLP (included in Exhibit 5.1)* |
| |
24.1 | | Power of Attorney (included on signature pages herein)* |
| |
101.INS | | XBRL Instance Document.** |
| |
101.SCH | | XBRL Taxonomy Extension Schema Document.** |
| |
101.CAL | | XBRL Taxonomy Extension Calculation Linkbase Document.** |
| |
101.DEF | | XBRL Taxonomy Extension Definition Linkbase Document.** |
| |
101.LAB | | XBRL Taxonomy Extension Label Linkbase Document.** |
| |
101.PRE | | XBRL Taxonomy Extension Presentation Linkbase Document.**UNDERTAKINGS. |
** | Filed as exhibits to the Company’s Form 10-K for the year ended December 31, 2015 and Form 10-Q for the quarter ended March 31, 2016, filed on March 18, 2016 and May 5, 2016, respectively, with corresponding exhibit numbers, and incorporated herein by reference. |
Undertakings
(a) 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;statement:
(i) To include any prospectus required by
Sectionsection 10(a)(3) of the Securities
Act of 1933;II-4
Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
thethis 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
thethis 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 percent20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in thethis registration statement or any material change into such information in thethis registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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 Securities Exchange Act of 1934 that are incorporated by reference in thisthe registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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) That, for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(A)
(i) Each prospectus filed by
athe registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5)
, or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii)
, or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act
of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which
thethat prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Provided, however,, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the
(b) The undersigned registrant
hereby undertakes that,
in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
II-5
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
That, for purposes of determining any liability under the Securities Act, of 1933, each filing of the registrant’s annual report pursuant to Sectionsection 13(a) or Sectionsection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Sectionsection 15(d) of the Securities Exchange Act of 1934)Act) 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 initialbona fide offering thereof.
(c) 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
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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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Boca Raton,New York, State of
Florida,New York, on
June 17, 2016.the 13th day of August, 2019. | |
| | |
IDI, Inc. |
| |
By: | | /s/ Michael Brauser
|
| FLUENT, INC. |
| |
| By | | Michael Brauser/s/ Ryan Schulke |
| | Ryan Schulke |
| | Chief Executive ChairmanOfficer (Principal Executive Officer) |
KNOW ALL MEN BY THESE PRESENT, that each
POWER OF ATTORNEY
Each person whose signature appears below
hereby constitutes and appoints
eachRyan Schulke and Matthew Conlin, or either of
Michael Brauser and Derek Dubnerthem, as his
or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him
and in his name, place and stead,or her in any and all capacities, to sign any and all amendments to this
Form S-3,registration statement, including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) and Rule 462(e) 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,
with full power to act alone, full power and authority to do and perform each and every act
or thingsand thing requisite and necessary to be done in
and about the premises,connection therewith, as fully
and tofor all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his
or her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act,
of 1933, as amended, this registration statement has been signed by the following persons in the capacities
andindicated on the dates
indicated:indicated.
| | | | |
Signature
| | Title
| | Date
|
/s/ Michael Brauser
Michael Brauser
| | Executive Chairman
(Principal Executive Officer)
| | June 17, 2016 |
| | |
/s/ Dr. Phillip Frost
Dr. Phillip Frost
Signature | Title | Date |
| | Vice Chairman | | June 17, 2016 |
| | |
/s/ Daniel MacLachlan Daniel MacLachlan
| | Chief Financial Officer
(Principal Financial Officer)
| | June 17, 2016 |
| | |
/s/ Jacky Wang
Jacky Wang
| | Chief Accounting Officer
(Principal Accounting Officer)
| | June 17, 2016 |
| | |
/s/ Derek Dubner
Derek Dubner
| Ryan Schulke | Chief Executive Officer and Director | | June 17, 2016August 13, 2019 |
| Ryan Schulke | (Principal Executive Officer) | |
/s/ Ryan Schulke
Ryan Schulke
| | Director |
| /s/ Alexander Mandel | Chief Financial Officer | August 13, 2019 |
| Alexander Mandel | (Principal Financial Officer and Principal Accounting Officer) | |
| | June 17, 2016 |
| /s/ Matthew Conlin | President and Director | August 13, 2019 |
/s/ Robert N. Fried
Robert N. Fried
Matthew Conlin | | Director |
| | June 17, 2016 |
| | |
/s/ Steven D. Rubin
Steven D. Rubin
| | Director | | June 17, 2016 |
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| | | | |
Signature
| | Title
| | Date
|
| | |
/s/ Robert Swayman
Robert Swayman
| | Director | | June 17, 2016 |
| | |
/s/ Peter Benz | Director | August 13, 2019 |
| Peter Benz | | Director |
| | June 17, 2016 |
| /s/ Andrew Frawley | Director | August 13, 2019 |
Andrew Frawley | | |
| | |
| /s/ Donald Mathis | Director | August 13, 2019 |
| Donald Mathis | | Director | | June 17, 2016 |
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EXHIBIT INDEX
| | |
Exhibit No.
| | Exhibit Description
|
| |
5.1 | | Legal Opinion of Akerman LLP |
| |
23.1 | | Consent of Grant Thornton LLP |
| |
23.2 | | Consent of RBSM LLP |
| |
23.3 | | Consent of EisnerAmper LLP |
| |
23.4 | | Consent of Ernst & Young LLP |
| |
23.5 | | Consent of Akerman LLP (included in Exhibit 5.1) |
| |
24.1 | | Power of Attorney (included on signature pages herein) |
II-9