SECOND AMENDED AND RESTATED
BY-LAWS OF INUVO, INC.
ARTICLE I – OFFICES
The corporation's duly appointed resident agent in the State of Nevada upon whom process can be served is: Corporation Service Company, 112 North Curry Street, Carson City, Nevada 89703. The corporation may have such offices, either within or without the State of incorporation as the board of directors may designate or as the business of the corporation may from time to time require.
ARTICLE II – STOCKHOLDERS
1.ANNUAL MEETING.
The annual meeting of the stockholders shall be held on such date as is determined by the board of directors for the purpose of electing directors and for the transaction of such other business as may come before the meeting.
2.SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the president or by the directors, and shall be called by the president at the request of the holders of not less than ten percent of all the outstanding shares of the corporation entitled to vote at the meeting.
3.PLACE OF MEETING.
The directors may designate any place, either within or without the State unless otherwise prescribed by statute, as the place of meeting for any annual meeting or for any special meeting called by the directors. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the State unless otherwise prescribed by statute, as the place of holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation.
4.NOTICE OF MEETING
Written or printed notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States
mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon pre-paid.
5.CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or stockholders entitled to receive payment of any dividend, or in order to make a determination of stockholders for any other proper purpose, the directors of the corporation may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, thirty days; provided, however, that for so long as any class of the corporation's capital stock is listed on an exchange or included for quotation on an interdealer quotation system, the directors of the corporation shall not authorize closing of the stock transfer books for any purpose. If the stock transfer books shall be closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty days and, in case of a meeting of stockholders, not less than ten days prior to the date on which the particular action requiring such determination of stockholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders, or stockholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof.
6.VOTING LISTS.
The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the principal office of the corporation or transfer agent and shall be subject to inspection by any stockholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at the meeting of stockholders.
7.QUORUM.
Unless otherwise provided by law, at any meeting of stockholders one-third of the outstanding shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
8.PROXIES.
At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the secretary of the corporation before or at the time of the meeting.
9.VOTING.
Each stockholder entitled to vote in accordance with the terms and provisions of the certificate of incorporation and these by-laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholders. Upon the demand of any stockholder, the vote for directors and upon any question before the meeting shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the certificate of incorporation or the laws of this State.
10.ORDER OF BUSINESS.
The order of business at all meetings of the stockholders shall be as follows:
1.ROLL CALL.
2.PROOF OF NOTICE OF MEETING OR WAIVER OF NOTICE.
3.READING OF MINUTES OF PRECEDING MEETING.
4.REPORTS OF OFFICERS.
5.REPORTS OF COMMITTEES.
6.ELECTION OF DIRECTORS.
7.UNFINISHED BUSINESS.
8.NEW BUSINESS.
9.INFORMAL ACTION BY STOCKHOLDERS
Unless otherwise provided by law, any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the same percentage of all the stockholders entitled to vote with respect to the subject matter thereof as would be required to take such action at a meeting.
ARTICLE III – BOARD OF DIRECTORS
1.GENERAL POWERS.
The business and affairs of the corporation shall be managed by its board of directors. The directors shall in all cases act as a board, and they may adopt such rules and regulations for the conduct of their meetings and the management of the corporation, as they may deem proper, not inconsistent with these by-laws and the laws of this State.
2.NUMBER, TENURE AND QUALIFICATIONS.
The number of directors of the corporation shall be established by the board of directors, but shall not be less than one. The directors shall be elected at the annual meeting of the stockholders. Directors shall be divided into three classes, as equal in number as may be possible, and designated Class I, Class II and Class III, respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the board of directors. Directors shall be elected for a full term of three years; provided, however, that commencing with the board of directors elected at the 2008 annual meeting, the terms of the Class I and Class II directors shall be shortened, to the 2009 and 2010 annual meetings, respectively. The terms of the Class III directors elected at 2008 annual meeting shall be for a full three year term, expiring at the 2011 annual meeting. The term of office of each person elected as a director will continue until the designated annual meeting for the class of director or until a successor has been elected and qualified, or until the director’s earlier death, resignation or removal. If any director resigns, dies or is otherwise unable to serve out his or her term, or if the board increases the number of directors, the board may fill any vacancy by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy shall serve for the unexpired term of his or her predecessor. Vacancies occurring by reason of the removal of directors without cause may only be filled by vote of the stockholders. Any reduction of the authorized number of directors may not remove any director prior to the expiration of that director’s term of office, unless, at the time of such decrease, there shall be vacancies on the Board that are being eliminated by such reduction. With the consent of the serving director, the corporation may assign such serving director to any other Class of directors.
3.REGULAR MEETINGS.
A regular meeting of the directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution.
4.SPECIAL MEETINGS.
Special meetings of the directors may be called by or at the request of the president or any director. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. A director may attend any meeting by telephonic participation at the meeting.
5.NOTICE.
Notice of any special meeting shall be given at least two days previously thereto by written notice delivered personally, by electronic mail, by facsimile, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
6.QUORUM.
At any meeting of the directors a majority shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice.
7.MANNER OF ACTING.
The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors.
8.NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the board for any reason except the removal of directors without cause may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. Vacancies occurring by reason of the removal of directors without cause shall be filled by vote of the stockholders. A director elected to fill a vacancy caused by resignation, death or removal shall be elected to hold office for the unexpired term of his predecessor.
9.REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause by vote of the stockholders or by action of the board. Directors may be removed without cause only by vote of the stockholders.
10.RESIGNATION.
A director may resign at any time by giving written notice to the board, the president or the secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the board or such officer, and the acceptance of the resignation shall not be necessary to make it effective.
11.COMPENSATION.
The board of directors shall have the authority to fix the compensation of directors. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor.
12.PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
13.EXECUTIVE AND OTHER COMMITTEES.
The board, by resolution, may designate from among its members an executive committee and other committees, each consisting of two or more directors. Each such committee shall serve at the pleasure of the board.
ARTICLE IV – OFFICERS
1.OFFICERS.
The officers of the corporation shall consist of a president, a secretary, a treasurer, and a chief financial officer, who shall be elected by the Board of Directors, and may consist of additional officers including, one or more vice presidents (who may be designated as vice presidents, senior vice presidents or executive vice presidents), as appointed by the board of directors or the chief executive officer. The corporation may have such additional or assistant officers (sometimes referred to as "additional officers") as the board of directors or chief executive officer may deem necessary for its business and may appoint from time to time.
The board of directors shall also have the authority, but shall not be required, to designate officers as the chief executive officer, the chief operating officer, the treasurer or similar such titles. Any two or more offices may be held by the same person.
If a director/officer has not been designated as chairman, or if the designated chairman is not present, the board of directors shall elect a chairman from amongst its members to serve as chairman of the board of directors. The chairman shall preside at all meetings of the board of directors, and shall have such other powers as the board may determine.
2.ELECTION AND TERM OF OFFICE.
The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided.
3.REMOVAL.
Any officer or agent elected or appointed by the directors may be removed by the directors whenever in their judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
4.VACANCIES.
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term.
5.SALARIES.
The salaries of the officers shall be fixed from time to time by the directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation.
ARTICLE V – CONTRACTS, LOANS, CHECKS AND DEPOSITS
1.CONTRACTS.
The directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
2.LOANS.
No loans shall be contracted on behalf of the corporation and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the directors. Such authority may be general or confined to specific instances.
3.CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors.
4.DEPOSITS.
All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as the directors may select.
ARTICLE VI – CERTIFICATES FOR SHARES AND THEIR TRANSFER
1.CERTIFICATES
The name and address of the stockholders, the number of shares and date of issue, shall be entered in the stock transfer books of the corporation. Shares of the capital stock of the corporation may be certificated or uncertificated, as provided under Nevada law. Any certificates for shares ("Certificates") shall be in such form, consistent with law and the Articles of Incorporation, as shall be approved by the board of directors. Any Certificates for each class,
or series within a class, of shares, shall be numbered consecutively as issued or otherwise identified. Any Certificate shall be signed (either manually or in facsimile) by (i) the president or a vice president and (ii) the secretary or an assistant secretary, or by any two or more officers who may be designated by the board or directors, and may have affixed thereto the corporate seal, which may be a facsimile, engraved or printed.
2.UNCERTIFICATED SHARES.
The board of directors may authorize the issuance of uncertificated or book-entry shares of some or all of the shares of any or all of its classes or series. The issuance of uncertificated or book-entry shares has no effect on existing certificates for shares until surrendered to the corporation, or on the respective rights and obligations of the stockholders. Within a reasonable time after the issuance or transfer of shares without certificates and a least annually thereafter, the corporation shall send the stockholder a written statement certifying the number of shares in the corporation owned by the stockholder.
Notwithstanding the foregoing, upon the written request of a holder of shares of the corporation delivered to the Secretary of the corporation or the corporation’s transfer agent, such holder is entitled to receive one or more certificates representing the shares of capital stock of the corporation held by such holder.
3.RECORD OF CERTIFICATES; TRANSFERS.
Transfers of certificated shares shall be assignable and transferable only on the books of the corporation or by transfer agents designated to transfer shares of the stock of the corporation. An outstanding certificate for the number of shares involved shall be surrendered for cancellation, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, before a new certificate or uncertificated share is issued therefor. Transfers of uncertificated shares of capital stock shall be entered on the books of the corporation only by the holder thereof or by attorney upon presentment of proper evidence of succession, assignment or authority to transfer in accordance with customary procedures for transferring shares in uncertificated form. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares shall be cancelled, issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. The corporation shall be entitled to treat the holder of record of any share as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this State.
4.LOST, STOLEN OR DESTROYED CERTIFICATES.
The corporation may issue a new certificate of stock or, if authorized by the board of directors or these by-laws, uncertificated shares in place of a certificate previously issued by it and alleged to have been lost, stolen or destroyed. Any person claiming a Certificate to be lost, stolen or destroyed shall make affidavit or affirmation of that fact in such form as the corporation may require and, if the board, the president or the secretary shall so require, shall give the corporation and/or the transfer agents and registrars, if they shall so require, a bond of indemnity, in form and with one or more sureties satisfactory to the
board, the president, the secretary and/or the transfer agents and registrars, in such amount as the board, the president or the secretary may direct and/or the transfer agents and registrars may require, whereupon a new Certificate or uncertificated shares may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen or destroyed. An uncertificated share may be issued in place of the lost, stolen or destroyed Certificate.
ARTICLE VII – FISCAL YEAR
The fiscal year of the corporation shall end on the last day of such month on each year as the directors may prescribe.
ARTICLE VIII – DIVIDENDS
The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law.
ARTICLE IX – SEAL
The directors may, in their discretion, provide a corporate seal which shall have inscribed thereon the name of the corporation, the state of incorporation, and the words, "Corporate Seal".
ARTICLE X – WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these by-laws or under the provisions of the certificate of incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XI – AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be adopted by action of the board of directors.
ARTICLE XII – INDEMNIFICATION
1.INDEMNIFICATION OF THIRD PARTY ACTIONS.
THE 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 HE 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 ATTORNEY'S FEES), JUDGMENTS,
FINES AND AMOUNTS PAID IN SETTLEMENT ACTUALLY AND REASONABLY INCURRED BY HIM IN CONNECTION WITH THE ACTION, SUIT OR PROCEEDING IF HE ACTED IN GOOD FAITH AND IN A MANNER HE REASONABLY BELIEVED TO BE IN OR NOT
OPPOSED TO THE BEST INTEREST OF THE CORPORATION, AND, WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, HAD NOT REASONABLE CAUSE TO BELIEVE HIS CONDUCT WAS UNLAWFUL. THE TERMINATION OF ANY ACTION, SUIT OR
PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT, CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT, OF ITSELF, CREATE A
PRESUMPTION THAT THE PERSON DID NOT ACT IN GOOD FAITH AND IN A MANNER WHICH HE REASONABLY BELIEVED TO BE IN THE BEST INTEREST OF THE
CORPORATION, AND WITH RESPECT TO ANY CRIMINAL ACTION OR PROCEEDING, HAD REASONABLE CAUSE TO BELIEVE THAT HIS CONDUCT WAS UNLAWFUL.
2.INDEMNIFICATION - CORPORATE ACTIONS.
THE 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 HE 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 ATTORNEY'S FEES) ACTUALLY AND REASONABLY INCURRED BY HIM IN CONNECTION WITH THE DEFENSE OR
SETTLEMENT OF THE ACTION OR SUIT IF HE ACTED IN GOOD FAITH AND IN A MANNER HE REASONABLY BELIEVED TO BE IN OR NOT OPPOSED TO THE BEST
INTEREST OF THE CORPORATION, EXCEPT THAT NO INDEMNIFICATION SHALL BE MADE IN RESPECT OF ANY CLAIM, ISSUE OR MATTER AS TO WHICH THE PERSON SHALL HAVE BEEN ADJUDGED TO BE LIABLE TO THE CORPORATION, UNLESS AND ONLY TO THE EXTENT THAT 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 CIRCUMSTANCES OF THE CASE, THE PERSON IS FAIRLY AND REASONABLY ENTITLED TO INDEMNITY FOR SUCH EXPENSES AS THE COURT CONSIDERS PROPER.
3.DETERMINATION.
TO THE EXTENT THAT A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE
CORPORATION HAS BEEN SUCCESSFUL ON THE MERITS OR OTHERWISE IN DEFENSE OF ANY ACTION, SUIT OR PROCEEDING REFERRED TO IN SECTION 1 AND 2 OF THIS ARTICLE XII, OR IN DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, HE SHALL BE INDEMNIFIED AGAINST EXPENSES (INCLUDING ATTORNEY'S FEES) WHICH HE ACTUALLY AND REASONABLY INCURRED IN CONNECTION THEREWITH. ANY OTHER INDEMNIFICATION UNDER SECTION 1 AND 2 OF THIS ARTICLE XII NOT ORDERED BY A COURT SHALL BE MADE BY THE CORPORATION UPON A DETERMINATION THAT
INDEMNIFICATION OF THE DIRECTOR, OFFICER, EMPLOYEE OR AGENT IS PROPER IN THE CIRCUMSTANCES BECAUSE HE HAS MET THE APPLICABLE STANDARD OF
CONDUCT SET FORTH IN SECTION 1 OR 2 HEREOF. SUCH DETERMINATION SHALL BE MADE EITHER BY (1) THE BOARD OF DIRECTORS BY A MAJORITY VOTE OF A QUORUM CONSISTING OF DIRECTORS WHO WERE NOT PARTIES TO SUCH ACTION, SUIT OR
PROCEEDING, (2) BY INDEPENDENT LEGAL COUNSEL IN A WRITTEN OPINION, OR (3)
BY THE STOCKHOLDERS BY A MAJORITY VOTE OF A QUORUM OF STOCKHOLDERS AT ANY MEETING DULY CALLED FOR SUCH PURPOSE.
4.GENERAL INDEMNIFICATION.
THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY THIS ARTICLE MAY NOT BE CONSTRUED TO BE EXCLUSIVE OF ANY OF THE RIGHTS TO
WHICH A PERSON SEEKING INDEMNIFICATION OR ADVANCEMENT OF EXPENSES MAY BE ENTITLED UNDER ANY BY-LAW, AGREEMENT, VOTE OF STOCKHOLDERS OR
DISINTERESTED DIRECTORS OR OTHERWISE, BOTH AS TO AN ACTION IN HIS
OFFICIAL CAPACITY AND AS TO AN ACTION IN ANOTHER CAPACITY WHILE HOLDING OFFICE.
5.ADVANCES.
EXPENSES INCURRED IN DEFENDING A CIVIL OR CRIMINAL ACTION, SUIT OR PROCEEDING MAY BE PAID BY THE CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF THE ACTION, SUIT OR PROCEEDING UPON RECEIPT OF AN
UNDERTAKING BY OR ON BEHALF OF THE DIRECTOR, OFFICER, EMPLOYEE OR AGENT THAT HE SHALL REPAY THE AMOUNT ADVANCED IF IT IS ULTIMATELY DETERMINED THAT HE IS NOT ENTITLED TO BE INDEMNIFIED BY THE CORPORATION AS
AUTHORIZED BY THIS ARTICLE.
6.SCOPE OF INDEMNIFICATION.
THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES AUTHORIZED BY THIS ARTICLE SHALL APPLY TO ALL PRESENT AND FUTURE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF THE CORPORATION AND SHALL CONTINUE AS TO SUCH PERSONS WHO CEASE TO BE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS OF THE CORPORATION AND SHALL INURE TO THE BENEFIT OF THE HEIRS, EXECUTORS, AND ADMINISTRATORS OF ALL SUCH PERSONS AND SHALL BE IN ADDITION TO ALL OTHER INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY LAW.
7.INSURANCE.
THE CORPORATION MAY 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 HIM AND INCURRED BY HIM IN ANY SUCH CAPACITY OR ARISING OUT OF HIS STATUS IN ANY SUCH CAPACITY, WHETHER OR NOT THE CORPORATION WOULD HAVE THE POWER TO INDEMNIFY HIM AGAINST ANY SUCH LIABILITY UNDER THE PROVISION OF THIS ARTICLE X11 OR THE LAWS OF THE STATE OF NEVADA, AS THE SAME MAY HEREAFTER BE AMENDED OR MODIFIED.
INUVO, INC. EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 22nd day of May, 2023, (this "Agreement") between lnuvo, Inc. ("Inuvo" or the "Company"), a Nevada corporation, and Barry Lowenthal ("Executive").
Recitals
lnuvo wishes to employ Executive on the terms and conditions set forth in this Agreement.
Statement of Agreement
In consideration of the foregoing, and of Executive's employment, the parties agree as follows:
1)Employment. Effective May 22, 2023. Executive's employment with lnuvo shall commence and be upon the terms and conditions hereinafter set forth (the "Effective Time").
2)Duties.
(a)Executive shall serve as the President of the Company, reporting to the Chief Executive Officer. In this capacity, Executive will serve as the Company's President and will provide advice, representation and counsel to the Company with respect to its business and affairs, and perform such other or additional duties and responsibilities consistent with Executive's title(s), status, and position as the Chief Executive Officer of Inuvo may, from time to time, prescribe.
(b)So long as employed under this Agreement, Executive agrees to devote full time and efforts exclusively on behalf of the Company and to competently, diligently and effectively discharge all duties of Executive hereunder. Executive shall not be prohibited from engaging in such personal, charitable, or other nonemployment activities as do not interfere with full time employment hereunder and which do not violate the other provisions of this Agreement. Executive further agrees to comply fully with all reasonable policies of the Company as are from time to time in effect.
(c)Executive shall be based out of Florida. Executive shall not be required to relocate.
3.Compensation.
(a)As full compensation for all services rendered to the Company pursuant to this Agreement, in whatever capacity rendered, (i) the Company will pay to Executive during the term hereof a minimum base salary at the rate of $300,000 per year (the "Basic Salary"). The Basic Salary thereafter may be increased, but not decreased, from time to time, by the Board of Directors in connection with reviews of Executive's performance pursuant to the same review process employed by the Board of Directors for the Company's other executive officers.
(b)At the Effective Time Executive shall be granted Restricted Stock Units for 1,250,000 shares of Inuvo Common Stock (the “RSUs”). The RSUs shall vest 1/3 per year of service based on continued employment with the Company and shall be subject to the terms and conditions of a Restricted Stock Unit Agreement.
(c)For each fiscal year completed during your employment under this Agreement, you will be eligible to earn an annual bonus. Your target bonus (the “Target Bonus”) for fiscal 2023 will be one hundred fifty thousand dollars ($150,000), with the actual amount of any such bonus being determined by the Company in its sole discretion, based on your performance and that of the Company against goals established by the Company. In order to receive any annual bonus hereunder, you must be employed through the date that the bonus is paid. Any annual bonus payable for fiscal year 2023 will be prorated based on the number of days that you are employed by the Company during the year. Executive may receive additional incentive compensation opportunities in the future in connection with reviews of Executive's performance pursuant to the same review process employed by the Board of Directors for the Company's other executive officers.
4.Business Expenses. The Company shall promptly pay directly, or reimburse Executive for, all business expenses to the extent such expenses are paid or incurred by Executive during the term of employment in accordance with Company policy in effect from time to time and to the extent such expenses are reasonable and necessary to the conduct by Executive of the Company's business and properly substantiated.
5.Benefits. During the term of this Agreement and Executive's employment hereunder, the Company shall provide to Executive such insurance, vacation, sick leave and other like benefits as are provided to other executive officers of the Company from time to time. Executive will use his reasonable best efforts to schedule vacation periods to minimize disruption of the Company's business.
6.Term: Termination.
(a)The Company shall employ the Executive, and the Executive accepts such employment, for an initial term commencing on the date of this Agreement and ending on the first anniversary of the date of this Agreement. Thereafter, this Agreement shall be extended automatically for additional twelve-month periods, unless terminated as described herein. Executive's employment may be terminated at any time as provided in this Section 6. For purposes of this Section 6, "Termination Date" shall mean the date on which a 'separation from service' occurs, as defined in Treasury Regulation Section l .409A-l (h).
(b)The Company may terminate Executive's employment without Cause (as defined below) upon giving 30 days' advance written notice to Executive. If Executive's employment is terminated without Cause under this Section 6(b), the Executive shall be entitled to receive (A) the earned but unpaid portion of Executive's Basic Salary through the Termination Date (For purposes of subsections (A) and (B) of this Section 6(b), Executives Basic Salary will mean the largest among the following: Executive’s Basic Salary immediately prior to (A) Executive’s Termination Date, or (B) any reduction of Executive’s base salary described in the first clause of subsection 6(e)(iii) in the definition of Good Reason); (B) over a period of twelve (12) months following the Termination Date (the "Severance Period") an amount equal to his annual Basic Salary at the time of the Termination Date; and (C) any other amounts or benefits owing to Executive under the then applicable
employee benefit, long term incentive or equity plans and programs of the Company, which shall be paid or treated in accordance with Section 3 hereof and otherwise in accordance with the terms of such plans and programs. Notwithstanding the foregoing, in the event the Termination Date is less than twelve full months from the Effective Date, all payments under Section 6(b)(B) shall be prorated based on the on the number of full days of service from the Effective Date to the Termination Date (for example if the Termination Date occurred on the 90 days from the Effective Date, the payments would be reduced to 90/360 or 25% of Basic Salary would be paid).
(c)The Company may terminate Executive's employment upon a determination by the Company that "Cause" exists for Executive's termination and the Company serves written notice of such termination upon Executive. As used in this Agreement, the term "Cause" shall refer only to any one or more of the following grounds:
(i)commission of a material and substantive act of theft, including, but not limited to, misappropriation of funds or any property of the Company;
(ii)intentional engagement in activities or conduct clearly injurious to the best interests or reputation of the Company which in fact result in material and substantial injury to the Company;
(iii)refusal to perform his assigned duties and responsibilities (so long as the Company does not assign any duties or responsibilities which would give the Executive Good Reason to terminate his employment as described in Section 6(e)) after receipt by Executive of written detailed notice and reasonable opportunity to cure;
(iv)insubordination by Executive, which shall include but not be limited to the refusal to comply with a lawful written directive to Executive (so long as the directive does not give the Executive Good Reason to terminate his employment as described in Section 6(e));
(v)the clear violation of any of the material terms and conditions of this Agreement or any written agreement or agreements Executive may from time to time have with the Company (following 30 days' written notice from the Company specifying the violation and Executive's failure to cure such violation within such 30 day period);
(vi)Executive's substantial dependence, as determined by the Board of Directors of the Company, on alcohol or any narcotic drug or other controlled or illegal substance which materially and substantially prevents Executive from performing his duties hereunder; and
(vii)the final and unappealable conviction of Executive of a crime which is a felony or a misdemeanor involving an act of moral turpitude, or a misdemeanor committed in connection with his employment by the Company, which causes the Company a substantial detriment.
In the event of a termination under this Section 6(c), the Company will pay Executive the earned but unpaid portion of Executive's Basic Salary through the Termination Date. If any determination of substantial dependence under Section 6(c)(vi) is disputed by the Executive, the parties hereto agree to abide by the decision of a panel of three physicians appointed in the manner as specified in Section 6(d) of this Agreement. If any determination of "Cause" is made under items 6(c), (i), (ii), (iii), (iv), (v), or (vii) which Executive contests, Executive shall have the opportunity, within 30
days of such determination, to personally appear in front of the Board of Directors and present his case to the Board of Directors and have the Board of Directors reconsider the determination of Cause.
(d)Executive's employment shall terminate upon the death or permanent disability of Executive. For purposes hereof, "permanent disability," shall mean the inability of the Executive, as determined by the Board of Directors of the Company, by reason of physical or mental illness to perform the duties required of him under this Agreement for more than 120 days in any 360 day period. Upon a determination by the Board of Directors of the Company that Executive's employment shall be terminated under this Section 6(d), the Board of Directors shall give Executive 30 days' prior written notice of the termination. If Executive disputes a determination of the Board of Directors under this Section 6(d), the parties agree to abide by the decision of a panel of three physicians. The Company will select a physician, Executive will select a physician and the physicians selected by the Company and Executive will select a third physician. Executive agrees to make himself available for and submit to examinations by such physicians as may be directed by the Company. Failure to submit to any examination shall constitute a breach of a material part of this Agreement. In the event of termination due to death or permanent disability, the Company will pay Executive, or his legal representative, (i) the earned but unpaid portion of Executive's Basic Salary through the Termination Date; (ii) the earned but unpaid portion of any vested incentive compensation under and consistent with plans adopted by the Company prior to the Termination Date; and (iii) over a period of twelve (12) months following the Termination Date an amount equal to twenty percent (20%) of his Basic Salary at the time of the Termination Date for each year of employment with the Company capped at one hundred percent (100%) of Basic Salary which shall be paid or treated in accordance with Section 3 hereof and otherwise in accordance with the terms of such plans and programs; provided, however, that if the Company determines that any amounts to be paid to Executive hereunder are subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), then the Company shall in good faith adjust the form or timing of such payments as it reasonably determines to be necessary or advisable to be in compliance with Section 409A.
(e)The Executive may terminate his employment for Good Reason (as defined below) upon giving 30 days advance written notice to the Company provided, however, that such notice is given within ninety (90) days of the event that constitutes Good Reason and the Company has not cured the condition within thirty (30) days of receipt of such notice. If Executive terminates his employment for Good Reason under this Section 6(e), the Executive shall be entitled to receive (A) the earned but unpaid portion of Executive's Basic Salary through the Termination Date (For purposes of subsections (A) and (B) of this Section 6(e), Executives Basic Salary will mean the largest among the following: Executive’s Basic Salary immediately prior to (A) Executive’s Termination Date, or (B) any reduction of Executive’s base salary described in the first clause of subsection (e)(iii) in the definition of Good Reason); (B) over a period of twelve (12) months after the Termination Date an amount equal his annual Basic Salary at the time of the Termination Date, ; and (C) any other amounts or benefits owing to Executive under the then applicable employee benefit, long term incentive or equity plans and programs of the Company, which shall be paid or treated in accordance with Section 3 hereof and otherwise in accordance with the terms of such plans and programs;. Notwithstanding the foregoing, in the event the Termination Date is less than twelve full months from the Effective Date, all payments under Section 6(e)(B) shall be prorated based on the on the number of full days of service from the Effective Date to the Termination Date (for example if the Termination Date occurred on the 90 days from the Effective Date, the payments
would be reduced to 90/360 or 25% of amounts set forth above would be paid). As used in this Agreement, the term "Good Reason" means any one or more of the following grounds:
(i)a change in Executive's title(s), status, position or responsibilities without Executive's written consent, which does not represent a promotion from his existing status, position or responsibilities, despite Executive's written notice to the Company of his objection to such change and the Company's failure to address such notice in a reasonable fashion within 30 days of such notice, provided, however, such provision shall not apply in the event of a Change in Control (as defined below) of the Company;
(ii)the assignment to Executive of any duties or responsibilities which are inconsistent with his status, position or responsibilities as set forth in Section 2 hereof, despite Executive's written notice to the Company of his objection to such change and the Company's failure to address such notice in a reasonable fashion within 30 days of such notice;
(iii)if there is a reduction in Executive's Basic Salary, excluding one or more reductions (totaling no more than 25% in the aggregate) generally applicable to all senior executives provided, however, that such exclusion shall not apply if the material diminution in the Executive’s base compensation occurs within (A) 60 days prior to the consummation of a Change in Control where such Change in Control was under consideration at the time of Executive’s Termination Date or (B) twelve (12) months after the date upon which such a Change in Control occurs hereof; or
(iv)a breach by the Company of any material term or provision of this
Agreement.
(f)The Executive may terminate his employment for any reason (other than Good Reason) upon giving 30 days' advance written notice to the Company. If Executive's employment is so terminated under this Section 6(f), the Company will pay Executive the earned but unpaid portion of Executive's Basic Salary through the Termination Date and the earned but unpaid portion of any vested incentive compensation under and consistent with plans adopted by the Company prior to the Termination Date.
(g)In the event of the Executive's death during the Severance Period, payments of Basic Salary under this paragraph 6 and payments under the Company's employee benefit plan(s) shall continue to be made in accordance with their terms during the remainder of the Severance Period to the beneficiary designated in writing for such purpose by the Executive or, if no such beneficiary is specifically designated, to the Executive's estate.
(h)As used in this Agreement, the term "Change in Control" shall mean the occurrence of any one of the following events:
(i)any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing thirty-five percent (35%) or more, excluding in the calculation of Beneficial Ownership securities acquired directly from the Company, of the combined voting power of the Company's then outstanding voting securities;
(ii)any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifty-one percent (51%) or more of the combined voting power of the Company's then outstanding voting securities;
(iii)the following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on the Effective Time, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company's stockholders was approved or recommended by a vote of the at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Time or whose appointment, election or nomination for
election was previously so approved or recommended;
(iv)there is a consummated merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving or parent equity outstanding immediately after such merger or consolidation or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person, directly or indirectly, acquired twenty-five percent (25%) or more of the combined voting power of the Company's then outstanding securities (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates); or
(v)the stockholders of the Company approve a plan of complete liquidation of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets (or any transaction having a similar effect), other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale.
For purposes of this Section 6, the following terms shall have the following meanings:
(i)"Affiliate" shall mean an affiliate of the Company, as defined in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended from time to time (the "Exchange Act");
(ii) under the Exchange Act;
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3
(iii) "Person" shall have the meaning set forth in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (I) the Company, (2) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (3) an underwriter temporarily holding securities pursuant to an offering of such securities or (4) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of Common Stock of the Company.
(i)Notwithstanding any provision in this Section 6 to the contrary, any payment that is required by this Section 6 to be paid in installments (including, but not limited to, Base Salary continuation under Section 6(b)) shall be paid in two payment streams. The first payment stream will begin as soon as practicable after the Termination Date and end upon the earlier of (i) the date Executive has been paid an amount equal to the lesser of two times the dollar limit prescribed in Section 401(a)(l 7) of the Code or (ii) the last day of the installment period. The second payment stream will be equal to the amount, if any, payable to Executive during the installment period that was not paid in the first payment stream. This amount will commence as soon as practicable after the day that is six months after the Termination Date and end on the last day of the installment period. All other amounts payable to Executive will be paid in accordance with the applicable provision of this Section 6; provided, however, that if Executive is a "specified employee" as defined in Section 409A of the Code and the Company determines that any amounts to be paid to Executive hereunder are subject to Section 409A of the Code, then the Company shall not commence payment of such amounts until the earlier of (a) the date that is six months after the Executive's Termination Date or (b) the date of the Executive's death. Any amount that otherwise would have been payable but for the delay described above shall be aggregated and paid with the first payment under this Section 6(k).
7.Indemnity.
(a)Subject only to the exclusions set forth in Section 7(b) hereof, the Company hereby agrees to hold harmless and indemnify Executive against any and all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by Executive in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (excluding an action by or in the right of the Company) to which Executive is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that Executive is, was or at any time becomes a director, officer, employee or agent of the Company, or is or was serving or at any time serves at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(b)The Company hereof shall not indemnify Executive pursuant to Section
7(a):
(i)except to the extent the aggregate losses to be indemnified hereunder exceed the amount of such losses for which Executive is indemnified pursuant to any directors and officers liability insurance purchased and maintained by the Company;
(ii)in respect to remuneration paid to Executive if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(iii)on account of any suit in which judgment is rendered against Executive for an accounting of profits made from the purchase or sale by Executive of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act and amendments thereto or similar provisions of any federal, state or local statutory law;
(iv)on account of Executive's material breach of any provision of this
Agreement;
(v)on account of Executive's act or omission being finally adjudged to involve intentional misconduct, a knowing violation of law, or grossly negligent conduct; or
(vi)if a final decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful.
(c)All agreements and obligations of the Company contained herein shall continue during the period Executive is a director, officer, employee or agent of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue thereafter so long as Executive shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that Executive was an officer or director of the Company or serving in any other capacity referred to herein.
(d)Promptly after receipt by Executive of notice of the commencement of any action, suit or proceeding, Executive will, if a claim in respect thereof is to be made against the Company under this Section 7, notify the Company of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability which it may have to Executive otherwise than under this Section 7. With respect to any such action, suit or proceeding as to which Executive notifies the Company under this Section 7(d):
(i)The Company will be entitled to participate therein at its own
expense.
(ii)Except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel selected by the Company. After notice from the Company to Executive of its election so to assume the defense thereof, the Company will not be liable to Executive under this Section 7 for any legal or other expenses subsequently incurred by Executive in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Executive shall have the right to employ his counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Executive, unless
(A) the employment of counsel by Executive has been authorized by the Company, or (B) the Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company.
(iii)The Company shall not be liable to indemnify Executive under this Agreement for any amounts paid in settlement of any action or claim effected without its written consent. The Company shall not settle in any manner that would impose any penalty or limitation on Executive without Executive's written consent. Neither the Company nor Executive will unreasonably withhold their consent to any proposed settlement.
(e)Executive agrees that Executive will reimburse the Company for all customary and reasonable expenses paid by the Company in defending any civil or criminalaction, suit or proceeding against Executive in the event and only to the extent that it shall be ultimately determined that Executive is not entitled to be indemnified by the Company for such expenses under the provisions of Nevada law (or the laws of the Company's state of incorporation at the time), federal securities laws, the Company's By-laws or this Agreement.
8.Clawback Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any incentive-based compensation, or any other compensation, paid to the Executive pursuant to this Agreement or any other agreement or arrangement with the Company which is subject to recovery under any law, government regulation or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing requirement).
9.Assignment. This Agreement is personal to Executive and Executive may not assign or delegate any of his rights or obligations hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the respective parties hereto, their heirs, executors, administrators, successors and assigns.
10.Waiver. Neither any failure nor any delay by any party in exercising any right, power or privilege under this Agreement or any of the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in a written document signed by the other party, (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given, and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of that party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
11.Notices. Any and all notices required or permitted to be given under this Agreement will be sufficient and deemed effective three (3) days following deposit in the United States mail if furnished in writing and sent by certified mail to Executive at:
Barry Lowenthal
2275 S. Ocean Blvd., Apt. 103A
Palm Beach FL 33480
and to the Company at:
lnuvo, Inc.
500 President Clinton Ave.
Suite 300
Little Rock, AR 72201
Attention: Chief Executive Officer
or such subsequent addresses as one party may designate in writing to the other parties.
12.Governing Law. This Agreement shall be interpreted, construed and governed according to the laws of the State of Florida.
13.Amendment. This Agreement may be amended in any and every respect only by agreement in writing executed by both parties hereto.
14.Section Headings. Section headings contained in this Agreement are for convenience only and shall not be considered in construing any provision hereof.
15.Entire Agreement. With the exception of the Confidentiality, Assignment and Noncompetition Agreement, of even date herewith and any stock option agreements between Executive and the Company, this Agreement terminates, cancels and supersedes all previous employment or other agreements relating to the employment of Executive with the Company or any predecessor, written or oral, and this Agreement contains the entire understanding of the parties with respect to the subject matter of this Agreement. This Agreement was fully reviewed and negotiated on behalf of each party and shall not be construed against the interest of either party as the drafter of this Agreement. EMPLOYEE ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE HAS READ THE ENTIRE AGREEMENT AND HAS THIS DAY RECEIVED A COPY HEREOF.
16.Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement or parts thereof.
17.Survival. The last two sentences of Section 3, Sections 6, 7 and 8 of this Agreement and this Section 17 shall survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Executive:
/s/ Barry Lowenthal
Barry Lowenthal
Inuvo, Inc.:
By: /s/ Richard Howe
Richard Howe, Chief Executive Officer
