Inuvo, Inc S-3, filed Feb 12, 2021
Inuvo, Inc. (INUV)
S-3
2021-02-12
View Original
Added on
October 15, 2026
As filed with the Securities and Exchange Commission on February
11, 2021
Registration No. 333-_________________
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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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FORM S-3
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
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Inuvo, Inc.
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(Exact name of registrant as specified in its charter)
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Nevada
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(State or other jurisdiction of incorporation or
organization)
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87-0450450
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(I.R.S. Employer Identification Number)
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500 President Clinton Boulevard
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Suite 300
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Little Rock, AR 72201
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Telephone (501) 205-8508
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(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)
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John B. Pisaris, Esq.
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General Counsel
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500 President Clinton Boulevard
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Suite 300
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Little Rock, AR 72201
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Telephone (501) 205-8508
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(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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With a copy to:
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Jeremy D. Siegfried, Esq.
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Porter, Wright, Morris & Arthur LLP
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41 South High Street, Suite 2800
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Columbus, Ohio 43215-6194
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(614) 227-2181
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(614) 227-2100 (fax)
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Jsiegfried@porterwright.com
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From time to time after effectiveness of this registration
statement
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(Approximate date of commencement of proposed sale to the
public)
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If the only securities being registered on this Form are being
offered pursuant to a dividend or interest reinvestment plans,
please check the following box: ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: ☒
If this Form is 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, a
smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule
12b-2 of the Exchange Act
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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If an emerging growth company, indicate by checkmark 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 Section7(a)(2)(B) of the Securities
Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of each
class of
securities to be
registered
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Amount to
be
registered(1)
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Proposed maximum
offering price per unit(2)
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Proposed
maximum
aggregate offering price(2)(3)
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Amount
of
registration
fee(2)(3)
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Common
stock, par value $0.001 per share
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Preferred
stock, par value $0.001 per share
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Warrants
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Units
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Total
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$75,000,000
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$8,182.50
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(1)
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There
are being registered hereunder such indeterminate number of shares
of common stock and preferred stock, and such indeterminate number
of warrants to purchase common stock, preferred stock and/or units
as may be sold by the registrant, from time to time, which together
shall have an aggregate initial offering price not to exceed
$75,000,000. Any securities registered hereunder may be sold
separately or in combination with other securities registered
hereunder. The proposed maximum offering price of the securities
will be determined, from time to time, by the registrant in
connection with the issuance by the registrant of the securities
registered hereunder. The securities registered hereunder also
include such indeterminate number of shares of common stock and
preferred stock as may be issued upon conversion of or exchange for
preferred stock that provide for conversion or exchange, upon
exercise of warrants or pursuant to the antidilution provisions of
any of such securities. In addition, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such
indeterminate number of shares of common stock and preferred stock
as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security
will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3 under
the Securities Act.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act.
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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 which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933, as amended, or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell 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 we are not soliciting offers to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 11, 2021
PROSPECTUS
$75,000,000
Inuvo, Inc.
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
We may
offer and sell up to $75,000,000 in the aggregate of any
combination of the securities identified above from time to time in
one or more offerings. This prospectus provides you with a general
description of the securities.
Each
time we offer and sell securities, we will provide a supplement to
this prospectus that contains specific information about the
offering and the amounts, prices and terms of the securities. The
supplement may also add, update or change information contained in
this prospectus with respect to that offering. You should carefully
read this prospectus and the applicable prospectus supplement and
any related free writing prospectus before you invest in any of our
securities.
We may
offer and sell the securities described in this prospectus and any
prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a
combination of these methods. If any underwriters, dealers or
agents are involved in the sale of any of the securities, their
names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth, or
will be calculable from the information set forth, in the
applicable prospectus supplement. See the sections of this
prospectus entitled “About this Prospectus” and
“Plan of Distribution” for more information. No
securities may be sold without delivery of this prospectus and the
applicable prospectus supplement describing the method and terms of
the offering of such securities.
Our
common stock is listed on the NYSE American LLC under the symbol
“INUV.” The last reported sale price of our common
stock on February 10, 2021 was $1.84 per share.
The
aggregate market value of our outstanding common stock held by
non-affiliates is $197,790,564.48 based on 118,513,403 shares of
common stock outstanding, of which 107,494,872 shares are held by
non-affiliates, and a per share value of $1.84 based on the closing
price of our common stock on the NYSE American on February 10,
2021.
Investing
in our securities involves various risks. See the “Risk Factors” section of our
filings with the Securities and Exchange Commission and the
applicable prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or
passed upon the adequacy or accuracy of this prospectus or any
accompanying prospectus supplement. Any representation to the
contrary is a criminal offense.
The
date of this prospectus is ________________, 2021
TABLE OF CONTENTS
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You
should rely only on the information we have provided or
incorporated by reference in this prospectus or in any prospectus
supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by
reference in this prospectus or in any prospectus supplement. This
prospectus and any prospectus supplement is an offer to sell only
the securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should assume that
the information contained in this prospectus and in any prospectus
supplement is accurate only as of their respective dates and that
any information we have incorporated by reference is accurate only
as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus or any
prospective supplement or any sale of securities. The registration
statement, including the exhibits and the documents incorporated
herein by reference, can be read on the website of the Securities
and Exchange Commission, or “SEC,” or on our corporate
website at www.inuvo.com
as set forth in this prospectus under the heading “Available
Information.”
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we
filed with the SEC utilizing a “shelf” registration, or
continuous offering, process. Under the shelf registration process,
we may issue and sell any combination of the securities described
in this prospectus in one or more offerings with a maximum offering
price of up to $75,000,000.
This
prospectus provides you with a general description of the
securities we may offer. Each time we sell securities under this
shelf registration, we will provide a prospectus supplement that
will contain certain specific information about the terms of that
offering, including a description of any risks related to the
offering, if those terms and risks are not described in this
prospectus. A prospectus supplement may also add, update or change
information contained in this prospectus. If there is any
inconsistency between the information in this prospectus and the
applicable prospectus supplement, you should rely on the
information in the prospectus supplement. The registration
statement we filed with the SEC includes exhibits that provide more
details on the matters discussed in this prospectus. You should
read this prospectus and the related exhibits filed with the SEC
and the accompanying prospectus supplement together with additional
information described under the headings “Available
Information” and “Information Incorporated by
Reference” before investing in any of the securities
offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT
Neither we, nor any agent, underwriter or dealer 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
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 free writing prospectus does 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 does this prospectus, any applicable supplement to this
prospectus or any related 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
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 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, and you
may obtain copies of those documents as described below under the
section entitled “Available Information.”
Unless the context otherwise indicates, when used
herein, the terms “Inuvo” “we,”
“us,” “our” and similar terms refer to
Inuvo, Inc., a Nevada corporation, and our subsidiaries. In
addition, “2019” refers to the year ended December 31,
2019, “2020” refers to the year ended December 31,
2020, and “2021” refers to the year ended December 31,
2021.
AVAILABLE INFORMATION
We file annual, quarterly and other reports, proxy
statements and other information with the SEC. You may read our
filings on the SEC’s website at www.sec.gov
or on our corporate website at
www.inuvo.com.
The information on our corporate website is not incorporated by
reference into and is not made a part of this
prospectus.
We
have filed a registration statement under the Securities Act of
1933, as amended, or the “Securities Act,” with the SEC
with respect to the securities to be sold pursuant to this
prospectus. This prospectus has been filed as part of the
registration statement. This prospectus does not contain all of the
information set forth in the registration statement because certain
parts of the registration statement are omitted in accordance with
the rules and regulations of the SEC. You should refer to the
registration statement, including the exhibits, for further
information about us and the securities being offered pursuant to
this prospectus. Statements in this prospectus regarding the
provisions of certain documents filed with, or incorporated by
reference in, the registration statement are not necessarily
complete and each statement is qualified in all respects by that
reference.
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Our corporate website is located at
www.inuvo.com.
We make available free of charge, through the investor section of
our website, annual reports on Form 10-K, quarterly reports on Form
10-Q and current reports on Form 8-K and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 as soon as reasonably
practicable after we electronically file such material with, or
furnish it to, the SEC.
OUR COMPANY
Our Company
Inuvo
is a technology company that develops and sells information
technology solutions for marketing. These platforms predictively
identify and message online audiences for any product or service
across devices, channels and formats, including video, mobile,
connected TV, display, social and native. These capabilities allow
Inuvo’s clients to engage with their customers and prospects
in a manner that drives engagement from the first contact with the
consumer. Inuvo facilitates the delivery of hundreds of millions of
marketing messages to consumers every single month and counts among
its clients numerous world-renowned names in industries that have
included retail, automotive, insurance, health care, technology,
telecommunications and finance.
Inuvo’s
solution incorporates a proprietary form of artificial
intelligence, or AI, branded the IntentKey. This sophisticated
machine learning technology uses interactions with Internet content
as a source of information from which to predict consumer intent.
The AI includes a continually updated database of over 500 million
machine profiles which Inuvo utilizes to deliver highly aligned
online audiences to its clients. Inuvo earns revenue when consumers
view or click on its client’s messages. Inuvo’s
business scales through account management activity with existing
clients and by adding new clients through sales
activity.
As
part of Inuvo’s technology strategy, it owns a collection of
websites including alot.com and earnspendlive.com, where Inuvo
creates content in health, finance, travel, careers, auto,
education and living categories. These sites provide the means to
test Inuvo’s technologies, while also delivering high quality
consumers to clients through the interaction with proprietary
content in the form of images, videos, slideshows and
articles.
There
are many barriers to entry associated with Inuvo’s business
model, including a proficiency in large scale information
processing, predictive software development, marketing data
products, analytics, artificial intelligence, integration to the
internet of things (IOT), and the relationships required to execute
within the IOT. Inuvo’s intellectual property is protected by
18 issued and seven pending patents.
Corporate information
We were
incorporated in Nevada as a corporation on October 29, 1987. Our
principal executive offices are located at 500 President Clinton
Boulevard, Suite 300, Little Rock, AR 72210, and our telephone
number is (501) 205-8508. Our fiscal year end is December 31. We
maintain a corporate website at www.inuvo.com .
Except as specifically set forth herein, the information which
appears on our website is not part of the prospectus or this
prospectus supplement.
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RISK FACTORS
Investing in our
securities involves a high degree of risk. Before deciding whether
to invest in our securities, you should consider carefully the
risks and uncertainties described under the heading “Risk
Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and discussed under the
section entitled “Risk Factors” contained in our most
recent Annual Report on Form 10-K, as may be updated by subsequent annual,
quarterly and other reports that are incorporated by reference into
this prospectus in their entirety. The risks described in
these documents are not the only ones we face, but those that we
consider to be material. There may be other unknown or
unpredictable economic, business, competitive, regulatory or other
factors that could have material adverse effects on our future
results. Past financial performance may not be a reliable indicator
of future performance, and historical trends should not be used to
anticipate results or trends in future periods. If any of these
risks actually occurs, our business, financial condition, results
of operations or cash flow could be seriously harmed. Our business, financial position, results of
operations, liquidity or prospects could also be adversely affected
by any continuing adverse impact of the COVID-19 pandemic on our
Company which we are presently unable to predict. These
risks could cause the trading price of our common stock to
decline, resulting in a loss of all or part of your investment.
Please also read carefully the section below entitled
“Cautionary Note Regarding Forward-Looking
Information.”
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING INFORMATION
The
information included or incorporated by reference into this
prospectus contains forward-looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the
Exchange Act. These forward-looking
statements that relate to future events or our future financial
performance and involve known and unknown risks, uncertainties and
other factors that may cause our actual results, levels of
activity, performance or achievements to differ materially from any
future results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements. Words
such as, but not limited to, “believe,”
“expect,” “anticipate,”
“estimate,” “intend,” “plan,”
“targets,” “likely,” “aim,”
“will,” “would,” “could,”
“should,” “predict,”
“potential,” “continue,” and similar
expressions or phrases identify forward-looking statements. We have
based these forward-looking statements largely on our current
expectations and future events and financial trends that we believe
may affect our financial condition, results of operation, business
strategy and financial needs. Actual results may differ materially
from those expressed or implied in such forward-looking statements
as a result of various factors. We do not undertake, and we
disclaim, any obligation to update any forward-looking statements
or to announce any revisions to any of the forward-looking
statements, except as required by law. Certain factors that could
cause results to be materially different from those projected in
the forward-looking statements include, but are not limited to,
statements about:
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our history of
losses and declining revenues;
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the known and
unknown impact of the COVID-19 pandemic on our
Company;
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our reliance on
revenues from a limited number of customers;
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seasonality of our
business which impacts our financial results and cash
availability;
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dependence on our
supply partners;
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our ability to
acquire traffic in a profitable manner;
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failure to keep
pace with technology changes;
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impact of possible
interruption in our network infrastructure;
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dependence on our
key personnel;
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regulatory and
legal uncertainties;
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failure to comply
with privacy and data security laws and regulations;
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third party
infringement claims;
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publishers who
could fabricate fraudulent clicks;
●
our ability to
continue to meet the NYSE American continued listing
standards;
●
the impact of
quarterly results on our common stock price; and
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dilution to our
stockholders upon the exercise of outstanding common stock options
and restricted stock unit grants.
We urge
you to consider these factors before investing in our common stock.
You should not place undue reliance on
these forward-looking statements, which speak only as of the date
of this prospectus. These forward-looking statements are based on
our current expectations and are subject to a number of risks and
uncertainties, including those set forth above. Although we believe
that the expectations reflected in these forward-looking statements
are reasonable, our actual results could differ materially from
those expressed in these forward-looking statements, and any events
anticipated in the forward-looking statements may not actually
occur. Except as required by law, we undertake no duty to update
any forward-looking statements after the date of this prospectus to
conform those statements to actual results or to reflect the
occurrence of unanticipated events. We qualify all forward-looking
statements contained or incorporated by reference in this
prospectus by the foregoing cautionary
statements.
5
USE OF PROCEEDS
We
intend to use the net proceeds, if any, from the sales of
securities offered by this prospectus for general corporate
purposes, which may include additions to working capital and
financing potential acquisitions. As of the date of this
prospectus, we cannot specify with certainty all of the particular
uses for the net proceeds to be received from this offering. The
amounts and timing of our actual expenditures will depend on
numerous factors including our results of operations in future
periods. Accordingly, our management will have broad discretion in
the application of the net proceeds, and investors will be relying
on the judgment of management regarding the application of the net
proceeds from the offering. We will
set forth in the particular prospectus supplement our intended use
for the net proceeds we receive from the sale of our securities
under such prospectus supplement.
DIVIDEND POLICY
We have
not declared or paid cash dividends on our common stock since our
inception. Under Nevada law, we are prohibited from paying
dividends if the distribution would result in our Company not being
able to pay its debts as they become due in the normal course of
business if our total assets would be less than the sum of our
total liabilities plus the amount that would be needed to pay the
dividends, or if we were to be dissolved at the time of
distribution to satisfy the preferential rights upon dissolution of
stockholders whose preferential rights are superior to those
receiving the distribution. Our board of directors has complete
discretion on whether to pay dividends subject to compliance with
applicable Nevada law. Even if our board of directors decides to
pay dividends, the form, the frequency, and the amount will depend
upon our future operations and earnings, capital requirements and
surplus, general financial condition, contractual restrictions and
other factors that the board of directors may deem relevant. While
our board of directors will make any future decisions regarding
dividends, as circumstances surrounding us change, it currently
does not anticipate that we will pay any cash dividends in the
foreseeable future.
DESCRIPTION OF CAPITAL
STOCK
Our
authorized capital is 150,000,000 shares of common stock, par value
$0.001 per share, and 500,000 shares of blank check preferred
stock, par value $0.001 per share. At February 10, 2021, there were
118,513,403 shares of common stock, which excludes 2,241 shares
held by our subsidiary, and no shares of preferred stock issued and
outstanding.
Common stock
Holders
of shares of common stock are entitled to one vote for each share
on all matters to be voted on by the stockholders. Holders of
common stock are entitled to share ratably in dividends, if any, as
may be declared from time to time by the board of directors in its
discretion from funds legally available therefor. In the event of a
liquidation, dissolution or winding up of our company, the holders
of common stock are entitled to share pro rata all assets remaining
after payment in full of all liabilities.
Commencing
with our 2008 annual meeting, our directors were divided into three
classes and designated Class I, Class II and Class III. Directors
may be assigned to each class in accordance with a resolution or
resolutions adopted by the board of directors. Directors are
elected for a full term of three years. Holders of common stock do
not have cumulative voting rights, which means that the holders of
a majority of the outstanding shares of our common stock can elect
all of the directors then standing for election, and the holders of
the remaining shares will not be able to elect any
directors.
All of the outstanding shares of common stock are
fully paid and non-assessable. Holders of common stock have no
preemptive rights to purchase our common stock. There are no
conversion or redemption rights or sinking fund provisions with
respect to the common stock. Under Nevada law, our stockholders generally are
not liable for our debts and obligations. There are no restrictions on the alienability of
our common stock and there are no provisions discriminating against
holders of a substantial amount of securities.
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Preferred stock
The
board of directors is authorized to provide for the issuance of
shares of preferred stock in series and, by filing an amendment
pursuant to the applicable laws of Nevada, to establish from time
to time the number of shares to be included in each such series,
and to fix the designation, powers, preferences and rights of the
shares of each such series and the qualifications, limitations or
restrictions thereof without any further vote or action by the
stockholders. Any shares of preferred stock so issued would have
priority over the common stock with respect to dividend or
liquidation rights.
Any
future issuance of preferred stock may have the effect of delaying,
deferring or preventing a change in control of our company without
further action by the stockholders and may adversely affect the
voting and other rights of the holders of common stock. In
addition, the issuance of shares of preferred stock, or the
issuance of rights to purchase such shares, could be used to
discourage an unsolicited acquisition proposal. For instance, the
issuance of a series of preferred stock might impede a business
combination by including class voting rights that would enable the
holder to block such a transaction, or facilitate a business
combination by including voting rights that would provide a
required percentage vote of the stockholders. In addition, under
certain circumstances, the issuance of preferred stock could
adversely affect the voting power of the holders of the common
stock. Although the board of directors is required to make any
determination to issue such stock based on its judgment as to the
best interests of our stockholders, the board of directors could
act in a manner that would discourage an acquisition attempt or
other transaction that some, or a majority, of the stockholders
might believe to be in their best interests or in which
stockholders might receive a premium for their stock over the then
market price of such stock. The board of directors does not at
present intend to seek stockholder approval prior to any issuance
of currently authorized stock, unless otherwise required by law or
stock exchange rules.
Options and restricted stock units
At
February 11, 2021, awards for 4,286,167 shares of our common stock
were outstanding, including 9,500 shares of our common stock issuable upon the
exercise of outstanding stock options with a weighted average
exercise price of $0.56 per
share and 4,276,667 shares of
our common stock underlying outstanding restricted stock
units.
Transfer agent
The transfer agent and registrar for our
common stock is Colonial Stock Transfer Company, 66 Exchange Place,
Suite 100, Salt Lake City, UT 84111, and its telephone number is
(801) 355-5740.
The
transfer agent and registrar for any series or class of preferred
stock will be set forth in the applicable prospectus
supplement.
NYSE American LLC listing
Our
common stock is listed on the NYSE American LLC under the symbol
“INUV.”
Anti-Takeover Effects of Various Provisions of Nevada Law and Our
Amended and Restated Articles of Incorporation, as amended, and
Amended and Restated By-Laws.
Blank Check Preferred Stock. Our Amended and Restated Articles
of Incorporation, as amended, permit our board of directors to
issue our preferred stock with voting, conversion and exchange
rights that could negatively affect the voting power or other
rights of our common stock stockholders, and the board of directors
could take that action without stockholder approval. The issuance
of our preferred stock could delay or prevent a change of control
of Inuvo.
Board Vacancies to be Filled by Remaining Directors and Not
Stockholders. Our Amended and Restated By-Laws provide that
any vacancies on the board of directors, including any newly
created directorships, will be filled by the affirmative vote of
the majority of the remaining directors then in office, even if
such directors constitute less than a quorum. We may also assign
such serving director to any class of directors.
Removal of Directors by Stockholders. Our Amended and
Restated By-Laws and the Nevada Corporation Law provide that
directors may be removed by stockholders only by the affirmative
vote of the holders of at least two-thirds of the voting power of
the outstanding capital stock entitled to vote.
7
Special Meetings of Stockholders. Under the Amended and
Restated By-Laws, only our president or board of directors may call
special meetings of the Company’s stockholders. Stockholders
who in the aggregate beneficially own at least 10% of all the
outstanding shares of the corporation entitled to vote at the
meeting may call a special meeting upon proper request to the
president.
Classified Board. Our Amended and Restated By-Laws provide
for the board of directors to be divided into three classes of
directors serving staggered three-year terms. This provision, when
coupled with the vote required to remove directors, can preclude
even a majority stockholder of common stock from gaining control of
the board of directors in one election.
Nevada Anti-Takeover Statute. We are subject to
Nevada’s Combination with Interested Stockholders Statute
(Nevada Corporation Law Sections 78.411-78.444) which prohibits an
“interested stockholder” from entering into a
“combination” with the corporation, unless certain
conditions are met. An “interested stockholder” is a
person who, together with affiliates and associates, beneficially
owns (or within the prior two years, did beneficially own) 10% or
more of the corporation’s capital stock entitled to
vote.
DESCRIPTION OF WARRANTS
We
may issue warrants for the purchase of preferred stock or common
stock, or any combination of these securities. Warrants may be
issued independently or together with other securities and may be
attached to or separate from any offered securities. Each series of
warrants will be issued under a separate warrant agreement. The
following outlines some of the general terms and provisions of the
warrants that we may issue from time to time. Additional terms of
the warrants and the applicable warrant agreement will be set forth
in the applicable prospectus supplement.
The
following descriptions, and any description of the warrants
included in a prospectus supplement, may not be complete and is
subject to and qualified in its entirety by reference to the terms
and provisions of the applicable warrant agreement, which we will
file with the Securities and Exchange Commission in connection with
any offering of warrants.
General
The
prospectus supplement relating to a particular issue of warrants
will describe the terms of the warrants, including the
following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the terms of the security that may be purchased upon exercise of
the warrants;
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if applicable, the designation and terms of the securities that the
warrants are issued with and the number of warrants issued with
each security;
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if applicable, the date from and after which the warrants and any
securities issued with the warrants will be separately
transferable;
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the dates on which the right to exercise the warrants commence and
expire;
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if applicable, the minimum or maximum amount of the warrants that
may be exercised at any one time;
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if applicable, a discussion of material United States federal
income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
and
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any additional terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
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8
Exercise of warrants
Each
warrant will entitle the holder of the warrant to purchase the
securities that we specify in the applicable prospectus supplement
at the exercise price that we describe in the applicable prospectus
supplement. Holders may exercise warrants at any time up to the
close of business on the expiration date set forth in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will be void. Holders may
exercise warrants as set forth in the prospectus supplement
relating to the warrants being offered. Until a holder exercises
the warrants to purchase any securities underlying the warrants,
the holder will not have any rights as a holder of the underlying
securities by virtue of ownership of warrants.
DESCRIPTION OF UNITS
We may
issue units consisting of any combination of our common stock,
preferred stock and warrants. We will issue each unit so that the
holder of the unit is also the holder of each security included in
the unit. As a result, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit
agreement under which a unit is issued may provide that the
securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified
date.
The
summary below and that contained in any prospectus supplement is
qualified in its entirety by reference to all of the provisions of
the unit agreement and/or unit certificate, and depositary
arrangements, if applicable. We urge you to read the applicable
prospectus supplements and any related free writing prospectuses
related to the units that we may offer under this prospectus, as
well as the complete unit agreement and/or unit certificate, and
depositary arrangements, as applicable, that contain the terms of
the units.
The
applicable prospectus supplement, information incorporated by
reference or free writing prospectus may describe:
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the
designation and terms of the units and of the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately;
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any
provisions for the issuance, payment, settlement, transfer, or
exchange of the units or of the securities composing the
units;
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whether
the units will be issued in fully registered or global form;
and
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any
other terms of the units.
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The
applicable provisions described in this section, as well as those
described under “Description of Our Capital Stock” and
“Description of Warrants” above will apply to each unit
and to each security included in each unit,
respectively.
LEGAL OWNERSHIP OF
SECURITIES
We can
issue securities in registered form or in the form of one or more
global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in
their own names on the books that we or any applicable trustee,
depositary or warrant agent maintain for this purpose as the
“holders” of those securities. These persons are the
legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in securities
that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect
holders are not legal holders, and investors in securities issued
in book-entry form or in street name will be indirect
holders.
9
Book-Entry Holders
We may
issue securities in book-entry form only, as we will specify in any
applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name
of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the
depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or
their customers.
Only
the person in whose name a security is registered is recognized as
the holder of that security. Securities issued in global form will
be registered in the name of the depositary or its participants.
Consequently, for securities issued in global form, we will
recognize only the depositary as the holder of the securities, and
we will make all payments on the securities to the depositary. The
depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their
customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another
or with their customers; they are not obligated to do so under the
terms of the securities.
As a
result, investors in a global security will not own securities
directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution
that participates in the depositary’s book-entry system or
holds an interest through a participant. As long as the securities
are issued in global form, investors will be indirect holders, and
not legal holders, of the securities.
Street Name Holders
We may
terminate a global security or issue securities in non-global form.
In these cases, investors may choose to hold their securities in
their own names or in “street name.” Securities held by
an investor in street name would be registered in the name of a
bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For
securities held in street name, we or any applicable trustee or
depositary will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are
registered as the holders of those securities, and we or any
applicable trustee or depositary will make all payments on those
securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because
they are legally required to do so. Investors who hold securities
in street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our
obligations, as well as the obligations of any applicable trustee
and of any third parties employed by us or a trustee, run only to
the legal holders of the securities. We do not have obligations to
investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case
whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in
global form.
For
example, once we make a payment or give a notice to the legal
holder, we have no further responsibility for the payment or notice
even if that legal holder is required, under agreements with its
participants or customers or by law, to pass it along to the
indirect holders but does not do so. Whether and how the legal
holders contact the indirect holders is up to the legal
holders.
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Special Considerations for Indirect Holders
If you
hold securities through a bank, broker or other financial
institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you
should check with your own institution to find out:
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how it
handles securities payments and notices;
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whether
it imposes fees or charges;
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how it
would handle a request for the holder’s consent, if ever
required;
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whether
and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the
future;
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how it
would exercise rights under the securities if there were a default
or other event triggering the need for holders to act to protect
their interests; and
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if the
securities are in book-entry form, how the depositary’s rules
and procedures will affect these matters.
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Global Securities
A
global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have
the same terms.
Each
security issued in book-entry form will be represented by a global
security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the
depositary. Unless we specify otherwise in any applicable
prospectus supplement, DTC will be the depositary for all
securities issued in book-entry form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We
describe those situations below under “Special Situations
When a Global Security Will Be Terminated.” As a result of
these arrangements, the depositary, or its nominee, will be the
sole registered owner and legal holder of all securities
represented by a global security, and investors will be permitted
to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
legal holder of the security, but only an indirect holder of a
beneficial interest in the global security.
If the
prospectus supplement for a particular security indicates that the
security will be issued in global form only, then the security will
be represented by a global security at all times unless and until
the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or
decide that the securities may no longer be held through any
book-entry clearing system.
Special Considerations for Global Securities
The
rights of an indirect holder relating to a global security will be
governed by the account rules of the investor’s financial
institution and of the depositary, as well as general laws relating
to securities transfers. We do not recognize an indirect holder as
a holder of securities and instead deal only with the depositary
that holds the global security.
11
If
securities are issued only in the form of a global security, an
investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we
describe below;
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an
investor will be an indirect holder and must look to his or her own
bank, broker or other financial institution for payments on the
securities and protection of his or her legal rights relating to
the securities, as we describe above;
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an
investor may not be able to sell interests in the securities to
some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry
form;
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an
investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of
the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global
security;
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we and
any applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership
interests in a global security, nor do we or any applicable trustee
supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those
who purchase and sell interests in a global security within its
book-entry system use immediately available funds, and your bank,
broker or other financial institution may require you to do so as
well; and
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financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in a
global security, may also have their own policies affecting
payments, notices and other matters relating to the
securities.
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There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In a
few special situations described below, the global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks,
brokers or other financial institutions to find out how to have
their interests in securities transferred to their own name, so
that they will be direct holders. We have described the rights of
holders and street name investors above.
Unless
we provide otherwise in any applicable prospectus supplement, the
global security will terminate when the following special
situations occur:
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if the
depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we
do not appoint another institution to act as depositary within 90
days;
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if we
notify any applicable trustee that we wish to terminate that global
security; or
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if an
event of default has occurred with regard to securities represented
by that global security and has not been cured or
waived.
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The
prospectus supplement may also list additional situations for
terminating a global security that would apply only to the
particular series of securities covered by any applicable
prospectus supplement. When a global security terminates, the
depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial
direct holders.
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PLAN OF DISTRIBUTION
We may
sell the securities from time to time pursuant to underwritten
public offerings, negotiated transactions, block trades or a
combination of these methods. We may sell the securities to or
through underwriters or dealers, through agents, or directly to one
or more purchasers. We may distribute securities from time to time
in one or more transactions:
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at a
fixed price or prices, which may be changed;
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at
market prices prevailing at the time of sale;
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at
prices related to such prevailing market prices; or
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at
negotiated prices.
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We may
also sell equity securities covered by this registration statement
in an “at the market” offering as defined in Rule
415(a)(4) under the Securities Act. Such offering may be made into
an existing trading market for such securities in transactions at
other than a fixed price on or through the facilities of the NYSE
American LLC or any other securities exchange or quotation or
trading service on which such securities may be listed, quoted or
traded at the time of sale.
Such at
the market offerings, if any, may be conducted by underwriters
acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing
prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities, including, to
the extent applicable:
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the
name or names of any underwriters, dealers or agents, if
any;
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the
purchase price of the securities and the proceeds we will receive
from the sale;
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any
over-allotment options under which underwriters may purchase
additional securities from us;
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any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
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any
public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchange or market on which the securities may be
listed.
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Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement, naming the underwriter, the
nature of any such relationship.
We may
sell securities directly or through agents we designate from time
to time. We will name any agent involved in the offering and sale
of securities, and we will describe any commissions we will pay the
agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
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We may
authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil
liabilities related to this offering, including liabilities under
the Securities Act, or contribution with respect to payments that
the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of
business.
All
securities we offer, other than common stock, will be new issues of
securities with no established trading market. Any underwriters may
make a market in these securities, but will not be obligated to do
so and may discontinue any market making at any time without
notice. We cannot guarantee the liquidity of the trading markets
for any securities.
Any
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids. Overallotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the
securities originally sold by the dealer are purchased in a
stabilizing or covering transaction to cover short positions. Those
activities may cause the price of the securities to be higher than
it would otherwise be. If commenced, the underwriters may
discontinue any of the activities at any time. These transactions
may be effected on any exchange or over-the-counter market or
otherwise.
Underwriters may
engage in passive market making transactions in the securities in
accordance with Regulation M. Passive market makers must comply
with applicable volume and price limitations and must be identified
as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent
bid for such security; if all independent bids are lowered below
the passive market maker’s bid, however, the passive market
maker’s bid must then be lowered when certain purchase limits
are exceeded. Passive market making may stabilize the market price
of the securities at a level above that which might otherwise
prevail in the open market and, if commenced, may be discontinued
at any time.
LEGAL MATTERS
Clark Hill PLC, 1055 West Seventh Street,
24th
Floor, Los Angeles, California
90017, will pass upon certain legal matters relating to the
issuance and sale of the common stock, preferred stock, warrants
and units offered hereby on behalf of Inuvo. Additional legal
matters may be passed upon for us or any underwriters, dealers or
agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
Our
audited consolidated balance sheets as of December 31, 2020 and
2019, and the related consolidated statements of operations,
stockholders’ equity and cash flows for the years ended
December 31, 2020 and 2019 incorporated by reference in the
registration statement of which this prospectus is a part have been
audited by Mayer Hoffman McCann P.C., independent registered public
accounting firm, as indicated in their report with respect thereto,
and have been so included in reliance upon the report of such firm
given on their authority as experts in accounting and
auditing.
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INFORMATION INCORPORATED BY
REFERENCE
We
file annual, quarterly and other reports, proxy statements and
other information with the SEC. The SEC allows us to incorporate by
reference the information we file with them, which means that we
can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus supplement, and later information
filed with the SEC will update and supersede this information. We
incorporate by reference the documents listed below that we have
previously filed with the SEC, except that information furnished
under Item 2.02 or Item 7.01 of our Current Reports on Form 8-K or
any other filing where we indicate that such information is being
furnished and not filed under the Exchange Act, is not deemed to be
filed and not incorporated by reference herein:
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our
Annual Report on Form 10-K for the year ended December 31, 2020 as
filed with the SEC on February 11, 2021;
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our
Current Reports on Form 8-K as filed with the SEC on January 14,
2021, January 19, 2021, January 20, 2021, and January 22, 2021;
and
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the
description of our common stock contained in the registration
statement on Form 8-A as filed with the SEC on February 28,
2005.
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We
also incorporate by reference into this prospectus supplement
additional documents that we may file with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
completion or termination of the offering, including all such
documents we may file with the SEC after the date of the initial
registration statement and prior to the effectiveness of the
registration statement, but excluding any information deemed
furnished and not filed with the SEC. Any statements contained in a
previously filed document incorporated by reference into this
prospectus supplement is deemed to be modified or superseded for
purposes of this prospectus supplement to the extent that a
statement contained in this prospectus supplement, or in a
subsequently filed document also incorporated by reference herein,
modifies or supersedes that statement.
This
prospectus 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.
We
will provide to each person, including any beneficial owner, to
whom this prospectus is delivered, upon written or oral request, at
no cost to the requester, a copy of any and all of the information
that is incorporated by reference in this prospectus.
We
will provide to each person, including any beneficial owner, to
whom this prospectus supplement is delivered, upon written or oral
request, at no cost to the requester, a copy of any and all of the
information that is incorporated by reference in this prospectus
supplement. You may request a copy of these filings, at no cost to
you, by telephoning us at (501) 205-8508 or by writing us at the
following address:
Inuvo,
Inc.
500
President Clinton Boulevard
Suite
300
Little
Rock, Arkansas 72201
Attention:
Investor Relations
You may also access the documents incorporated by
reference in this prospectus supplement on the SEC’s website
at www.sec.gov
or through our website at
www.inuvo.com. The reference to our website is an inactive textual
reference only and, except for the specific incorporated documents
listed above, no information available on or through our website
shall be deemed to be incorporated in this prospectus supplement,
the accompanying prospectus or the registration statement of which
it forms a part.
15
|
$75,000,000
COMMON STOCK, PREFERRED STOCK,
WARRANTS OR UNITS
PROSPECTUS
_______________________,
2021
|
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
estimated expenses payable by Inuvo, Inc. in connection with the
distribution of the securities being registered are as
follows:
|
SEC
registration and filing fee
|
$8,182.50
|
|
Legal
fees and expenses
|
**
|
|
Accounting
fees and expenses
|
**
|
|
EDGAR
fees and printing costs
|
**
|
|
Transfer
agent fees
|
**
|
|
Blue
Sky fees and expenses
|
**
|
|
Miscellaneous
|
**
|
|
TOTAL
|
$**
|
**
Estimated expenses are presently not known and cannot be
estimated.
Item 15.
Indemnification of Directors and Officers.
Under
our Amended and Restated Articles of Incorporation, as amended, our
directors are not liable for monetary damages for breach of
fiduciary duty, except in connection with:
| ● |
a breach of the director’s duty of loyalty to us or our
stockholders;
|
|
|
|
| ● |
acts or omissions not in good faith or which involve intentional
misconduct, fraud or a knowing violation of law;
|
|
|
|
| ● |
a transaction from which our director received an improper benefit;
or
|
|
|
|
| ● |
an act or omission for which the liability of a director is
expressly provided under Nevada law.
|
In
addition, our Amended and Restated By-Laws provide that we must
indemnify our officers and directors to the fullest extent
permitted by Nevada law for all expenses incurred in the settlement
of any actions against such persons in connection with their having
served as officers or directors.
Insofar
as the limitation of, or indemnification for, liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers, or persons controlling us pursuant to the foregoing, or
otherwise, we have been advised that, in the opinion of the
Securities and Exchange Commission, such limitation or
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore,
unenforceable.
II-1
Item
16.
Exhibits.
|
No.
|
|
Exhibit Description
|
|
Form
|
|
Date Filed
|
Number
|
Filed or Furnished Herewith
|
|
1.1
|
|
Underwriting Agreement
|
|
|
|
|
|
***
|
|
4.1
|
|
Form of
preferred stock certificate
|
|
|
|
|
|
***
|
|
4.2
|
|
Form of
warrant
|
|
|
|
|
|
***
|
|
|
Opinion
of Clark Hill PLC
|
|
|
|
|
|
Filed
|
|
|
|
Consent
of Mayer Hoffman McCann P.C.
|
|
|
|
|
|
Filed
|
|
|
|
Consent
of Clark Hill PLC (included in Exhibit 5.1)
|
|
|
|
|
|
Filed
|
|
|
|
Power
of Attorney (included on signature page of registration
statement)
|
|
|
|
|
|
Filed
|
***
To
be filed, if necessary, by amendment or as an exhibit to a Current
Report on Form 8-K and incorporated by reference
herein.
Item
17.
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:
(i)
To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)
To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% 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 the registration statement
or any material change to such information in the registration
statement;
provided, however, that
paragraphs (a)(1)(i) (a)(1)(ii) and (a)(1)(iii) of this section 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 the 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:
(i)
If
the registrant is relying on Rule 430B:
(A)
Each
prospectus filed by the 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
II-2
(B)
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 that
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.
(ii)
If the registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after
effectiveness. 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 first use,
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 date of
first use.
(5)
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 undersigned registrant
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)
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.
(b)
The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
(d)
The
undersigned registrant hereby undertakes that:
(1)
For
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(2)
For
the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-3
SIGNATURES
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 Little Rock,
State of Arkansas on February 11, 2021.
|
|
Inuvo, Inc.
|
||
|
|
|
|
|
|
|
By:
|
/s/
Wallace D. Ruiz
|
|
|
|
|
Wallace D. Ruiz,
|
|
|
|
|
Chief Financial Officer
|
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints
Wallace D. Ruiz his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to
this Form S-3 registration statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and ratifying and
confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Name
|
|
Positions
|
|
Date
|
|
|
|
|
|
|
|
/s/ Richard K.
Howe
Richard
K. Howe
|
|
Chairman of the Board of Directors and Chief Executive Officer
(principal executive officer)
|
|
February 11, 2021
|
|
|
|
|
|
|
|
/s/ Wallace D.
Ruiz
Wallace
D. Ruiz
|
|
Chief Financial Officer (principal financial and accounting
officer)
|
|
February 11, 2021
|
|
|
|
|
|
|
|
/s/ Charles D.
Morgan
Charles
D. Morgan
|
|
Director
|
|
February 11, 2021
|
|
|
|
|
|
|
|
/s/ G. Kent
Burnett
G. Kent
Burnett
|
|
Director
|
|
February 11, 2021
|
|
|
|
|
|
|
|
/s/ Gordon J.
Cameron
Gordon
J. Cameron
|
|
Director
|
|
February 11, 2021
|
|
|
|
|
|
|
II-4
Exhibit Index
|
No.
|
|
Exhibit Description
|
|
Form
|
|
Date Filed
|
Number
|
Filed or Furnished Herewith
|
|
1.1
|
|
Underwriting
Agreement
|
|
|
|
|
|
***
|
|
4.1
|
|
Form of preferred
stock certificate
|
|
|
|
|
|
***
|
|
4.2
|
|
Form of
warrant
|
|
|
|
|
|
***
|
|
|
Opinion of Clark
Hill PLC
|
|
|
|
|
|
Filed
|
|
|
|
Consent of Mayer
Hoffman McCann P.C.
|
|
|
|
|
|
Filed
|
|
|
|
Consent of Clark
Hill PLC (included in Exhibit 5.1)
|
|
|
|
|
|
Filed
|
|
|
|
Power of Attorney
(included on signature page of registration statement)
|
|
|
|
|
|
Filed
|
***
to
be filed, if necessary, by amendment or as an exhibit to a Current
Report on Form 8-K and incorporated by reference
herein.
EXHIBITS 5.1 AND 23.2
 |
|
|
|
Clark
Hill LLP
1055
West Seventh Street, Suite 2400Los Angeles, CA 90017
T (213)
891-9100
F (213)
488-1178
clarkhill.com
|
February
11, 2021
|
Inuvo
Inc.
500 President Clinton Boulevard
Suite 300
Little Rock, AR 72201
Attn:
John B. Pisaris, Esq., General
Counsel
|
Re:
Inuvo Inc.
Dear
Mr. Pisaris:
We have
acted as counsel to Inuvo Inc., a Nevada corporation (the
“Company”), in connection
with the filing of a Registration Statement on Form S-3 filed on
February 11, 2021 (the “Registration Statement”)
under the Securities Act of 1933, as amended (the
“Securities
Act”). The Company has provided us with a prospectus
(the “Prospectus”), which forms
part of the Registration Statement. The Prospectus provides that it
will be supplemented in the future by one or more prospectus
supplements (each, a “Prospectus Supplement”).
The Registration Statement, including the Prospectus as
supplemented from time to time by one or more Prospectus
Supplements, provides for the registration by the Company of one or
more of the following securities with an aggregate offering price
of up to $75,000,000: (i) shares of the Company’s common
stock, par value $0.001 per share (the “Common Stock”); (ii)
shares of the Company’s preferred stock, which may be issued
in one or more series (the “Preferred Stock”); (iii)
warrants to purchase shares of Common Stock, shares of Preferred
Stock, or any combination thereof (the “Warrants”); and (iv)
units comprised of one or more shares of Common Stock, shares of
Preferred Stock, or Warrants, in any combination (the
“Units”). The Common
Stock, the Preferred Stock, the Warrants, and the Units are each
described in the Registration Statement, and are collectively
referred to herein as the “Securities” and are
sometimes individually referred to as a “Security.” The
Securities may be issued by the Company in one or more series and
may be offered and sold from time to time in amounts, at prices and
on terms to be determined at the time of the offering as set forth
in the Registration Statement, any amendments thereto (including
post-effective amendments) and one or more Prospectus
Supplements.
You
have requested our opinion as to the matters set forth below in
connection with the Registration Statement. In connection with this
opinion, we have examined and relied upon originals, or copies
certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda, and other instruments as in our
judgment are necessary or appropriate to enable us to render the
opinion expressed below. As to certain factual matters, we have
relied upon a certificate of an officer of the Company and have not
independently sought to verify such matters.
In
rendering this opinion, we have assumed without independent
verification: (i) the
genuineness and authenticity of all signatures on original
documents; (ii) the authenticity of all documents submitted to us
as originals; (iii) the conformity to originals of all documents
submitted to us as copies; (iv) the accuracy, completeness and
authenticity of certificates of public officials; (v) that
each natural person signing any document reviewed by us had the
legal capacity to do so; and (vi) the due authorization,
execution, and delivery of all documents where authorization,
execution and delivery are prerequisites to the effectiveness of
such documents.
Inuvo,
Inc.
February
11, 2021
Page
2
To the
extent relevant to any opinion below, we have also assumed that, at
the time of the sale or delivery of any Securities pursuant to the
Registration Statement: (i) the Registration Statement, as amended
by any amendments thereto (including post-effective amendments),
will have become effective under the Securities Act and the rules
and regulations promulgated thereunder, and such effectiveness will
not have been terminated or rescinded, and will comply with all
applicable laws; (ii) one or more Prospectus Supplements relating
to the Securities being offered will have been prepared and filed
in compliance with the Securities Act and the rules and regulations
promulgated thereunder, and will comply with all applicable laws;
(iii) if the Securities being offered are to be sold pursuant to a
purchase, underwriting, or similar agreement (an
“Underwriting
Agreement”), such Underwriting Agreement relating to
the Securities being offered, in the form filed as an exhibit to
the Registration Statement, any post-effective amendment thereto,
or a Current Report on Form 8-K under the Securities Exchange Act
of 1934 (the “Exchange Act”), will have
been duly authorized, executed, and delivered by the Company and
the other parties thereto, and will constitute a valid, binding,
and enforceable obligation of the Company and the other parties
thereto, enforceable against each of them in accordance with its
terms, and any Securities offered and sold pursuant thereto will
have been offered and sold in accordance with the terms thereof;
(iv) any warrant agreement (“Warrant Agreement”)
relating to the Warrants and any unit agreement
(“Unit
Agreement”) relating to the Units, in each case in the
form that may be filed as an exhibit to the Registration Statement,
any post-effective amendment thereto, or a Current Report on Form
8-K under the Exchange Act, will have been duly authorized,
executed, and delivered by the Company and the other parties
thereto, and will constitute a valid, binding, and enforceable
obligation of the Company and the other parties thereto,
enforceable against each of them in accordance with its terms; (v)
the Securities being offered and any related Underwriting
Agreement, amendments to the Articles of Incorporation, Warrant
Agreement, or Unit Agreement, as applicable, describing such
Securities will conform in all material respects to the description
thereof in the Registration Statement, any amendments thereto
(including post-effective amendments), and the Prospectus
Supplement relating to the Securities being offered; (vi) the
Securities being offered will have been issued and sold in
compliance with applicable federal and state securities laws and
for the consideration set forth in, and otherwise as contemplated
by and in conformity with, the Registration Statement, any
amendments thereto (including post-effective amendments), and the
Prospectus Supplement relating to the Securities being offered;
(vii) any applicable listing or other requirements of any stock
exchange on which the Securities being offered may be listed will
have been complied with; (viii) the rights, powers, privileges,
preferences, and other terms, if any, of any Security to be
established after the date hereof, and the terms of the issuance,
sale, and delivery of any Security being offered (a) will be in
conformity with the Articles of Incorporation and Bylaws as then in
effect, (b) will not violate any applicable law or result in a
breach of or default under any agreement or instrument to which the
Company is then a party or which is then binding upon the Company,
and (c) will comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the
Company; (ix) with respect to any shares of Common Stock or
Preferred Stock being offered, there will be sufficient shares of
Common Stock or Preferred Stock, as applicable, authorized,
designated (in the case of Preferred Stock), and available for
issuance, and that the consideration for the issuance and sale of
the Common Stock or Preferred Stock is in an amount that is not
less that the par value of the Common Stock or Preferred Stock as
applicable; (x) any Securities issuable upon conversion, exchange,
or exercise of any Security being offered will have been duly
authorized, created, and, if appropriate, reserved for issuance
upon such conversion, exchange, or exercise, and that upon the
issuance of any shares of Common Stock or Preferred Stock issuable
upon conversion or exercise of any of the Securities, the total
number of shares of Common Stock and Preferred Stock of the
Company, issued and outstanding, as applicable, will not exceed the
total number of shares of Common Stock and Preferred Stock that the
Company is then authorized to issue under its Articles of
Incorporation; and (xi) the Company shall be a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Nevada and shall have the necessary power and
authority to issue and sell such Securities.
Our
opinion herein is expressed solely with respect to the federal laws
of the United States and the Nevada General Corporation Law
(including the statutory provisions and all applicable provisions
of the Nevada Constitution and the reported judicial cases
interpreting those laws currently in effect). Our opinion is based
on these laws as in effect on the date hereof. We express no
opinion as to whether the laws of any jurisdiction are applicable
to the subject matter hereof. We are not rendering any opinion as
to compliance with any federal or state law, rule, or regulation
relating to securities, or to the sale or issuance thereof. As to
any facts material to the opinions expressed herein that were not
independently established or verified, we have relied upon oral or
written statements and representations of officers or other
representatives of the Company and others.
On the
basis of, and in reliance on, the foregoing examination and subject
to the assumptions, exceptions, qualifications, and limitations
contained herein, if the board of directors of the Company has
taken all necessary corporate action to authorize the issuance and
terms of the applicable Securities, including the terms of the
offering thereof and related matters in accordance with the
applicable underwriting, purchase, or similar agreement for such
offering, and when issued and paid for as described in the
Registration Statement (including any shares of Common Stock or
shares of Preferred Stock issuable in connection with the exercise
of any Warrants, or any Units), we are of the opinion that the
Securities will be validly issued, fully paid, and non-assessable,
enforceable against the Company in accordance with their
terms.
This
opinion is for your benefit in connection with the Registration
Statement and may be relied upon by you and by persons entitled to
rely upon it pursuant to the applicable provisions of the
Securities Act. We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement and to the reference to
our firm under the caption “Legal Matters” in the
Prospectus included in the Registration Statement. In giving such
consent, we do not thereby admit that we are experts with respect
to any part of the Registration Statement or the Prospectus, within
the meaning of the term “expert,” as used in Section 11
of the Securities Act, or the rules and regulations promulgated
thereunder, nor do we admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act, or
the rules and regulations of the Securities and Exchange Commission
promulgated thereunder. Our opinion is expressly limited to the
matters set forth above, and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the
Company, the Securities, or the Registration Statement. This
opinion is expressed as of the date hereof, and we disclaim any
undertaking to advise you of any subsequent changes in the facts
stated or assumed herein or of any subsequent changes in applicable
law. We bring to your attention that our legal opinions are an
expression of professional judgment and are not a guarantee of
result.
Very
truly yours,
/s/
Clark Hill PLC
EXHIBIT 23.1
Consent of Independent Registered Public Accounting
Firm
We
consent to the reference to our firm under the caption
“Experts” in the Registration Statement (Form S-3) of
Inuvo, Inc. and to the incorporation by reference therein of our
report dated February 11, 2021, with respect to the consolidated
financial statements of Inuvo, Inc. included in its Annual Report
(Form 10-K) for the years ended December 31, 2020 and 2019, filed
with the Securities and Exchange Commission.
/s/
Mayer Hoffman McCann P.C.
February 11, 2021
Clearwater,
Florida