UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 24, 2009
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KOWABUNGA! INC.
(Exact name of registrant as specified in its charter)
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Nevada |
001-32442 |
87-0450450 |
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(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
15550 Lightwave Drive, Clearwater, FL 33760
(Address of principal executive offices) (Zip Code)
(727) 324-0046
Registrant's telephone number, including area code
not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Item 8.01
Other Events.
The Board of Directors of Kowabunga! Inc. has approved a change of the company’s name to Inuvo, Inc. effective at the close of business on July 30, 2009. The Board approved the name change in connection with an overall branding of the company in an effort to better reflect our vision to transform the online pay-for-performance marketplace.
The name change is being effected through the merger of Kowabunga with a wholly-owned subsidiary in which Kowabunga will be the surviving entity. In accordance with the Nevada Revised Statutes, Kowabunga will change its name at the effective time of the merger. This action was approved by the company’s Board of Directors on May 28, 2009 and no consent of Kowabunga’s stockholders is required under Nevada law.
There will be no mandatory exchange of stock certificates. Following the name change, the share certificates which reflect our prior name will continue to be valid. Certificates reflecting the new corporate name will be issued in due course as old share certificates are tendered for exchange or transfer to our transfer agent, Colonial Stock Transfer Company, Inc., 66 Exchange Place, Suite 100, Salt Lake City, UT 84111, telephone 801-355-5740.
Both our CUSIP number and our trading symbol for our common stock on the NYSE Amex will change as a result of the name change. The new CUSIP number will be 46122 W 10 5 and our new trading symbol on NYSE Amex will be INUV. Our common stock will trade under our new name and new symbol beginning on July 31, 2009.
Item 7.01
Regulation FD Disclosure.
On July 24, 2009 we issued a press release disclosing the pending name change and the launch of our new Inuvo Platform. The press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.
The information contained in the press release attached hereto is being furnished and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability of that Section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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KOWABUNGA! INC. |
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Date: July 24, 2009 |
By: |
/s/ G AIL L. B ABITT |
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Gail L. Babitt, Chief Financial Officer |
EXHIBIT 2.4
AGREEMENT AND PLAN OF MERGER
by and between
INUVO, INC.,
a Nevada corporation
and
KOWABUNGA! INC.,
a Nevada corporation
AGREEMENT AND PLAN OF MERGER , dated as of June 5, 2009, between Inuvo, Inc., a Nevada corporation (“Inuvo Subsidiary”), and Kowabunga! Inc., a Nevada corporation (the “Parent”), such corporations being sometimes referred to herein together as the “Corporations.”
W I T N E S S E T H:
WHEREAS , the Inuvo Subsidiary was incorporated under the laws of the State of Nevada on June 3, 2009 and the authorized capital stock of the Inuvo Subsidiary consists of 100 shares of common stock, par value $0.001 per share (“Inuvo Subsidiary Common Stock”), all of which such shares were issued and outstanding on the date hereof and owned by the Parent;
WHEREAS , pursuant to the provisions of Nevada Revised Statutes (“NRS”) 92A.180, the Inuvo Subsidiary shall merge with and into the Parent (the “Merger”), with the Parent to be the surviving corporation of the Merger and to continue its existence under the NRS;
WHEREAS , the respective Boards of Directors of the Corporations, and the Parent as the sole stockholder of the Inuvo Subsidiary, by resolutions duly adopted, have approved this Agreement, and have directed that it be submitted to the respective stockholders of the Corporations for approval and adoption; and
WHEREAS , pursuant to the provisions of NRS 92A.180, no consent of the Parent’s stockholders is necessary to conclude the Merger.
NOW, THEREFORE , in consideration of the premises and of the mutual agreements set forth herein, the Corporations hereby agree as follows:
ARTICLE ONE
MERGER
1.1.
On the Effective Date (as defined in Section 1.6), and in accordance with the provisions of the NRS, the Inuvo Subsidiary shall be merged with and into the Parent which shall be the surviving corporation (the “Surviving Corporation”) of the Merger. Pursuant to the provisions of NRS 92A.180 (5) the name of the Parent shall be changed to “Inuvo, Inc.” on and after the Effective Date.
1.2.
On the Effective Date, the separate existence of Inuvo Subsidiary shall cease, the Inuvo Subsidiary and Parent shall be a single corporation; and the Surviving Corporation shall possess all the rights, privileges, powers and franchises, as well of a public as of a private nature, and shall be subject to all the restrictions, disabilities and duties of each of the Corporations; and all and singular, the rights, privileges, powers and franchises of each of the Corporations, and all property, real, personal and mixed, and all debts due to either of the Corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to or due to each of the Corporations, shall be taken and deemed to be transferred to and vested in the Surviving Corporation without further act or deed; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the
property of the Surviving Corporation as they were of the Corporations, and title to any real estate or interest therein, vested by deed or otherwise in either of the Corporations, shall not revert or be in any way impaired by reason of the Merger, but all rights of creditors and any liens upon the property of either of the Corporations shall be preserved unimpaired; and all debts, liabilities and duties of each of the Corporations shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by it. Any action or proceeding, whether civil, criminal or administrative, pending by or against either of the Corporations shall be prosecuted as if the Merger had not take place, or the Surviving Corporation may be substituted in such action or proceeding in place of either of the Corporations.
1.3.
From time to time after the Effective Date, the last acting officers of Inuvo Subsidiary or the corresponding officers of the Surviving Corporation may, in the name of Inuvo Subsidiary, execute and deliver all such proper deeds, assignments and other instruments and take or cause to be taken all such further or other actions, as the Surviving Corporation, or its successors or assigns, may deem necessary or desirable in order to vest in, or perfect or confirm to, the Surviving Corporation and its successors and assigns, title to, and possession of, all of the property, rights, privileges, powers and franchises referred to in Section 1.2 and otherwise to carry out the intent and purposes of this Agreement.
1.4.
All corporate acts, plans (including, without limitation, stock option plans), policies, approvals and authorizations of the Inuvo Subsidiary, its stockholder, Board of Directors, committees elected or appointed by its Board of Directors, officers and agents, which are valid and effective immediately prior to the Effective Date, shall be taken for all purposes as the acts, plans, policies, approvals and authorizations of the Surviving Corporation and shall be as effective and binding on the surviving corporation as they were with respect to the Inuvo Subsidiary.
1.5.
On and after the Effective Date, (a) the Articles of Incorporation and By-Laws of the Parent, as in effect on the date hereof, shall continue to be the Articles of Incorporation and By-Laws of the Surviving Corporation, unless and until they are thereafter duly altered, amended or repealed, as provided therein or by law, and (b) the persons serving as directors and officers of the Parent immediately prior to the Effective Date shall be the directors and officers, respectively, of the Surviving Corporation until their respective successors shall have been elected and shall have been duly qualified or until their earlier death, resignation or removal.
1.6.
Articles of Merger shall be signed, verified and filed with the Secretary of State of Nevada. The Merger shall become effective on the close of business on July 30, 2009, which such date is referred to herein as the “Effective Date.”
ARTICLE TWO
CANCELLATION OF SHARES
On the Effective Date, the Inuvo Subsidiary Common Stock owned by the Parent immediately prior to the Effective Date shall, by virtue of the Merger and without any action on the part of any party, be cancelled and retired and all rights in respect thereof shall cease.
ARTICLE THREE
CONDITIONS
The consummation of the Merger is subject to the satisfaction prior to the Effective Date of the following condition:
3.1.
No governmental authority or other third party shall have instituted or threatened any action or proceeding against the Inuvo Subsidiary or the Parent to enjoin, hinder or delay, or to obtain damages or other relief in connection with, the transactions contemplated by this Agreement; and no action shall have been taken by any court or governmental authority rendering the Inuvo Subsidiary or the Parent unable to consummate the transactions contemplated by this Agreement.
ARTICLE FOUR
TERMINATION
This Agreement may be terminated and the Merger abandoned by the Inuvo Subsidiary or the Parent by appropriate resolution of its respective Board of Directors and for any reason whatsoever, at any time prior to the Effective Date, whether before or after approval and adoption of this Agreement by the Parent as the sole stockholder of the Inuvo Subsidiary. In the event that this Agreement is terminated, it shall become void and shall have no effect, and no liability shall be imposed upon either of the Corporations or the directors, officers or stockholders thereof.
ARTICLE FIVE
AMENDMENT AND WAIVER
Prior to the Effective Date, whether before or after approval of this Agreement by the parent as the sole stockholder of the Inuvo Subsidiary, this Agreement may be amended or modified in any manner as may be determined in the judgment of the respective Boards of Directors of the Corporations to be necessary, desirable or expedient in order to clarify the intention of the parties hereto or to effect or facilitate the filing, recording or official approval of this Agreement and the Merger in accordance with the purposes and intent of this Agreement. Any failure of either of the Corporations to comply with any of the agreements set forth herein may be expressly waived in writing by the other Corporation.
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INUVO, INC. |
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a Nevada corporation |
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By: |
/s/ Richard K. Howe |
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Richard K. Howe, President |
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KOWABUNGA! INC., |
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a Nevada corporation |
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By: |
/s/ Richard K. Howe |
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Richard K. Howe, President |
EXHIBIT 3.4
ARTICLES OF MERGER
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[SEAL] |
ROSS MILLER |
Filed in the office of |
Document Number |
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Secretary of State |
/s/ Ross Miller |
20090466664-83 |
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204 North Carson Street, Ste 1 |
Ross Miller |
Filing Date and Time |
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Carson City, Nevada 89701-4299 |
Secretary of State |
06/05/2009 2:36 PM |
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(776) 884-5708 |
State of Nevada |
Entity Number |
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Website: secretaryofstate.biz |
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C833-1987 |
ARTICLES OF MERGER
(PURSUANT TO NRS 92A.200)
Page 1
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[SEAL] |
ROSS MILLER |
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Secretary of State |
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204 North Carson Street, Ste 1 |
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Carson City, Nevada 89701-4299 |
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(776) 884-5708 |
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Website: secretaryofstate.biz |
ARTICLES OF MERGER
(PURSUANT TO NRS 92A.200)
Page 2
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2) |
Forwarding address where copies of process may be sent by the Secretary of State of Nevada (If a foreign entity is the survivor of the merger - NRS 92A. 190): |
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Attn: |
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c/o: |
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3) |
(Choose one) |
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o |
The undersigned declares that a plan of merger has been adopted by each constituent entity (NRS 92A.200). |
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x |
The undersigned declares that a plan of merger has been adopted by the parent domestic entity (NRS 92A.180). |
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4) |
Owner’s approval (NRS 92A.200) (options a, b or c must be used, as applicable, for each entity) (If there are more than four merging entities, check box o and attach an 8 ½” x 11” blank sheet containing the required information for each additional entity): |
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(a) |
Owner’s entity was not required from |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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and, or: |
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Name of surviving entity, if applicable |
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[SEAL] |
ROSS MILLER |
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Secretary of State |
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204 North Carson Street, Ste 1 |
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Carson City, Nevada 89701-4299 |
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(776) 884-5708 |
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Website: secretaryofstate.biz |
ARTICLES OF MERGER
(PURSUANT TO NRS 92A.200)
Page 3
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(b) |
The plan was approved by the required consent of the owners of *: |
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INUVO, INC. |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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and, or: |
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KOWABUNGA! INC. |
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Name of surviving entity, if applicable |
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* Unless otherwise provided in the certificate of trust or governing instrument of a business trust, a merger must be approved by all the trustees and beneficial owners of each business trust that is a constituent entity in the merger. |
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[SEAL] |
ROSS MILLER |
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Secretary of State |
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204 North Carson Street, Ste 1 |
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Carson City, Nevada 89701-4299 |
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(776) 884-5708 |
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Website: secretaryofstate.biz |
ARTICLES OF MERGER
(PURSUANT TO NRS 92A.200)
Page 4
(c)
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Approval of plan of merger for Nevada non-profit corporation (NRS 92A. 180):
The plan of merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation. |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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Name of merging entity, if applicable |
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and, or: |
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Name of surviving entity, if applicable |
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[SEAL] |
ROSS MILLER |
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Secretary of State |
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204 North Carson Street, Ste 1 |
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Carson City, Nevada 89701-4299 |
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(776) 884-5708 |
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Website: secretaryofstate.biz |
ARTICLES OF MERGER
(PURSUANT TO NRS 92A.200)
Page 5
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5) |
Amendments, if any, to the articles or certificate of the surviving entity. Provide articles numbers, if available (NRS 92A. 200)*: |
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ARTICLE 1 – NAME
THE NAME OF THE CORPORATION IS INUVO, INC. |
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6) |
Location of Plan of Merger (check a or b): |
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o (a) The entire plan of merger is attached. |
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or, |
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x (b) The entire plan of merger is on file at the registered office of the surviving entity corporation, limited-liability company or business trust, or at the records office address if a limited partnership, or other place of business of the surviving entity (NRS 92A. 200). |
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7) |
Effective date (optional)**: 7/30/09 |
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* Amended and rested articles may be attached as an exhibit or integrated into the articles of merger. Please entitle them “Restated” or “Amended and Restated,” accordingly. The form to accompany restated articles prescribed by the secretary of state must accompany the amended and/or restated articles. Pursuant to NRS 92A.180 (merger of subsidiary into parent - Nevada parent owing 90% or more of the subsidiary), the articles of merger may not contain amendments to the constituent documents of the surviving entity except that the name of the surviving entity may be changed. |
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** A merger takes effect upon filing the articles or merger or upon a later date as specified in the articles, which must not be more than 90 days after the articles are filed (NRS 92A.240). |
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[SEAL] |
ROSS MILLER |
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Secretary of State |
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204 North Carson Street, Ste 1 |
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Carson City, Nevada 89701-4299 |
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(776) 884-5708 |
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Website: secretaryofstate.biz |
ARTICLES OF MERGER
(PURSUANT TO NRS 92A.200)
Page 6
EXHIBIT 99.1
KOWABUNGA!® ANNOUNCES DATES FOR BETA RELEASE OF ADVERTISING PLATFORM, NAME CHANGE AND NEW WEBSITE
CLEARWATER, FLORIDA -- JULY 24, 2009-- KOWABUNGA! INC. (NYSE Amex: KOW), a leading provider of performance-based advertising and technology solutions, announced today that it will be launching a beta version of the Inuvo Platform on August 10, 2009. This initial launch is a complete re-engineering of the MyAp affiliate marketing solution that currently serves hundreds of advertising customers and thousands of publishers. The company has addressed feature/scale requests from clients and tackled a number of industry challenges that should provide differentiation in the marketplace.
In conjunction with this product launch and effective close of business on July 30, 2009, the company’s name will change to Inuvo, Inc. and the trading symbol for its common stock, which trades on the NYSE Amex, will be INUV. The stock will trade under the new name and symbol on July 31, 2009.
“This product launch signals our renewed focus on innovation in online advertising and is an important step forward for this organization and the industry,” said Richard K. Howe, the company’s Chief Executive Officer. “Our vision for this platform will ultimately include all of the intellectual property acquired through several acquisitions across both the search and affiliate markets. The Inuvo Platform is designed as a framework that ultimately will allow the global development community the opportunity to build around the core, adding interfaces, widgets and applications that will benefit both advertiser and publisher alike.”
In this beta release, advertiser and publisher clients will have access to a self-serve console accessible via the company’s new website, www.inuvo.com , which will also be launched on August 10, 2009. Advertisers will be able to easily manage performance-based marketing campaigns and publishers will benefit from an improved dashboard and reporting environment.
The company’s new CUSIP number will be 46122 W 10 5. There will be no mandatory exchange of stock certificates. Following the name change, the share certificates which reflect the company’s prior name will continue to be valid. Certificates reflecting the new corporate name will be issued in due course as old share certificates are tendered for exchange or transfer to the company’s transfer agent, Colonial Stock Transfer Company, Inc., 66 Exchange Place, Suite 100, Salt Lake City, UT 84111, telephone 801-355-5740.
The company will continue to operate two business segments, Direct and Exchange. The Direct segment will contain all of the company’s direct marketing and lead generation assets. The Exchange segment comprises all the company’s technology, data and analytics which power the online marketplaces the company serves.
“To coincide with these changes and the launch of the Inuvo Platform, we have decided to adopt the Inuvo brand as the flagship for the entire company. Inuvo {in – new – vo} is a play on the words innovate and nouveau, both core to our product and brand philosophy. This brand better reflects our vision to transform the online pay-for-performance marketplace.” said Howe.
About Kowabunga!®, Inc.
Kowabunga is a leading provider of performance-based advertising and technology solutions. The company operates two businesses, a Direct Marketing business and an Advertising Exchange business. For more information, visit www.kowabunga.com .
Cautionary Note Regarding Forward-Looking Statements
Certain statements in this document and elsewhere by Kowabunga are "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Such information includes, without limitation, the business outlook, assessment of market conditions, anticipated financial and operating results, strategies, future plans, contingencies and contemplated transactions of the company. Such forward-looking statements are not guarantees of future performance and are subject to known and unknown risks, uncertainties and other factors which may cause or contribute to actual results of company operations, or the performance or achievements of the company or industry results, to differ materially from those expressed, or implied by the forward-looking statements. In addition to any such risks, uncertainties and other factors discussed elsewhere herein, risks, uncertainties and other factors that could cause or contribute to actual results differing materially from those expressed or implied for the forward- looking statements include, but are not limited to fluctuations in demand; changes to economic growth in the U.S. economy; government policies and regulations, including, but not limited to those affecting the Internet. Kowabunga undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. Actual results, performance or achievements could differ materially from those anticipated in such forward-looking statements as a result of certain factors, including those set forth in Kowabunga's filings with the Securities and Exchange Commission.
For more information about Inuvo or the Inuvo Platform, please visit www.inuvo.com.
Marketing Contact:
Ryan Riggin
SVP Marketing & Strategy
ryan.riggin@kowabunga.com
727.324.0046 x4309
Investor Relations Contact:
Gail Babitt
Chief Financial Officer
gail.babitt@kowabunga.com
727.324.0046 x2123
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