SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
Amendment No. 2
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2007
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 000-52851
FLO CORPORATION
(Exact name of registrant as specified in its charter)
| DELAWARE | 20-8651669 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 14000 Thunderbolt Place, Building R, Chantilly, Virginia |
20151 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrants telephone number, including area code: (724) 925-8383
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par value per share
(Title of Class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company (as defined in Rule 12b-2 of the Exchange Act):
Large accelerated filer ¨ Accelerated filer ¨ Non-accelerated filer ¨ Smaller reporting company x
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
There were no shares of the registrants common stock held by non-affiliates of the registrant as of June 30, 2007.
There were 1,955,618 shares of the registrants common stock outstanding as of April 25, 2008.
EXPLANATORY NOTE
This Amendment to the registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2007 is being filed in order to submit the information required to be included in Part III thereof within the period required by General Instruction G(3) to Form 10-K.
Part III of the registrants Annual Report on Form 10-K is hereby amended by deleting the text thereof in its entirety and substituting the following.
PART III
| Item 10. | Directors, Executive Officers and Corporate Governance. |
Directors
The following sets forth our current directors and information concerning their ages and background. All directors hold office until the next annual meeting of stockholders and until their respective successors are elected, except in the case of death, resignation or removal:
| Name |
Principal Occupation |
Age | Director Since | |||
| Glenn L. Argenbright |
President, Chief Executive Officer and Secretary, FLO Corporation | 41 | 2007 | |||
| Steven M. Oyer |
Chief Executive Officer, IdentiPHI, Inc. | 52 | 2007 | |||
| Kevin M. Mitchell |
Chairman, Business Travel Coalition, Inc. | 52 | 2007 | |||
| Paul R. Aaronson |
Managing Member, Stone Keep Capital Management LLC |
51 | 2007 |
Glenn L. Argenbright has served as our President, Chief Executive Officer, and Secretary and member of our board of directors since our formation in March 2007. Prior to joining us, Mr. Argenbright served as Chief Executive Officer of Saflink Corporation (now known as IdentiPHI, Inc.) a security solutions company, from December 2000 to September 2006, at which time he became general manager of Saflinks Registered Traveler Solutions group. Prior to joining Saflink, Mr. Argenbright served as President and Chief Executive Officer of Jotter Technologies, which merged with Saflink in 2000. Mr. Argenbright received a B.A. degree from the University of California at San Diego and a J.D. degree from the University of San Diego.
Steven M. Oyer has served as a member of our board of directors since our formation in March 2007. Mr. Oyer has served as a member of the board of directors of IdentiPHI, Inc. (previously known as Saflink Corporation), a security solutions company, since December 2001 and as its Chief Executive Officer since September 2006. Mr. Oyer was a managing director of Standard & Poors Investment Services, responsible for global business development, from 2001 to 2005. He has been active in industry associations such as Family Office Exchange and has served on the leadership council of the Institute for Private Investors.
Kevin Mitchell has served as a member of our board of directors since November 2007. Mr. Mitchell has served as chairman of Business Travel Coalition, Inc., a publishing, consulting and buyer advocacy firm, since January 1997. Mr. Mitchell received a B.S. degree from St. Josephs University.
Paul R. Aaronson has served as a member of our board of directors since November 2007. Mr. Aaronson is the co-founding partner and has served as the managing member of Stone Keep Capital Management LLC, an investment management company, since March 2008. Mr. Aaronson was self-employed as a financial services consultant from January 2006 through February 2008. From April 2005 to December 2005, Mr. Aaronson served as Chief Executive Officer of PlusFunds Group, Inc., a hedge fund index asset manager. From February 2001 to April 2005, Mr. Aaronson served as Executive Managing Director of Standard & Poors Portfolio Services Group, a global business that encompassed S&Ps index business and an investment advisory business. Mr. Aaronson received a B.A. degree from Middlebury College and a J.D. degree from Yale Law School.
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Executive Officers and Significant Employees
Our executive officers are generally elected annually at the meeting of our board of directors held in conjunction with the annual meeting of stockholders. The following sets forth our current executive officers and information concerning their age and background:
| Name |
Position |
Age | Position Since | |||
| Glenn L. Argenbright |
President, Chief Executive Officer and Secretary; Director | 42 | 2007 | |||
| Luke A. Thomas |
Executive Vice President, Strategy | 44 | 2007 | |||
| Colin C. McLaughlin |
Senior Vice President, Aviation & Screening | 35 | 2007 | |||
| Fred P. Fischer |
Senior Vice President, Sales | 50 | 2007 |
Glenn L. Argenbrightfor a biographical summary of Mr. Argenbright, see the Directors section of this Item 10.
Luke A. Thomas has served as our Executive Vice President, Strategy, since our formation in March 2007. In this position, he oversees all operational facets and strategic initiatives relating to our Registered Traveler solution. Mr. Thomas served as an executive employee focusing on Registered Traveler operations for Saflink Corporation, a security solutions company, from 2005 to 2007, where he also served as director of strategic alliances and commercial sales from 2003 to 2005. From 2000 to 2003, Mr. Thomas was director of commercial sales for Identix, Inc. (now L1 Identity Solutions, Inc.), an identity solutions company. Mr. Thomas received a B.S. degree from Pennsylvania State University.
Colin C. McLaughlin has served as our Senior Vice President, Aviation and Screening since our formation in March 2007. In this position, Mr. McLaughlin manages our strategic initiatives and airport operations relating to the Registered Traveler program. Mr. McLaughlin served as vice president of the Registered Traveler Solutions group at Saflink Corporation, a security solutions company, from January 2007 to March 2007, where he also served as a senior director and sales manager from 2003 to 2007. From 2001 to 2003, Mr. McLaughlin served as a regional sales manager for Identix, Inc. (now L1 Identity Solutions, Inc.), an identity solutions company. Mr. McLaughlin received a B.S. degree from the University of North Dakota.
Fred P. Fischer has served as our Senior Vice President, Sales, since our formation in March 2007. In this position, Mr. Fischer oversees corporate and strategic sales in connection with our Registered Traveler program. Mr. Fischer served as consultant for Saflink Corporation, a security solutions company, from January 2007 to March 2007. From 2005 to 2006, Mr. Fischer served as Senior Vice President, Strategic Sales for Verified Identity Pass, Inc., a Registered Traveler service provider. From January 2005 to November 2005, Mr. Fischer served as senior account director at SITA, Inc., a global aviation industry technology provider. From 2002 to 2004, Mr. Fischer served as Vice President of Global Sales at World Travel BTI, Inc., a travel services company. From 2002 to 2003, Mr. Fischer served as Vice President of Global Business Travel Sales of American Express Travel Related Services, Inc., a credit card and travel service provider, where he also served as Director of Corporate Card Sales from 1999 to 2002, and technical sales manager from 1996 to 1999. Mr. Fischer is a member of Association of Corporate Travel Executives Global Traveler Security committee.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires our executive officers and directors and persons who beneficially own more than 10% of our common stock to file initial reports of ownership and reports of changes in ownership with the SEC. Such persons are required by SEC regulations to furnish us with copies of all Section 16(a) forms they file.
Based solely on our review of such forms furnished to us and written representations from certain reporting persons, we believe that all filing requirements applicable to our executive officers, directors and greater-than
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10% holders were complied with, except we believe that (i) Messrs. Fischer and Oyer each filed one late report with respect to one transaction; (ii) each of Soundpost Capital, LP (together with certain persons affiliated with it) and Lyrical Opportunity Partners II LP (together with certain persons affiliated with it) has filed one late report with respect to one transaction; and (iii) Enable Capital Management, LLC, Forum Partners, International RAM Associates, LLC, Melleos Capital Management LLC, and SJXE LLC, each of whom we believe to have been a beneficial holder of at least 10% of our common stock at some time during 2007, have not filed any Section 16(a) forms.
Code of Ethics
Our board of directors has adopted a code of ethics that applies to our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. The code of ethics is applicable to all of our directors, employees and officers. These materials are available free of charge by writing to our corporate secretary at 14000 Thunderbolt Place, Building R, Chantilly, Virginia, 20151. Any substantive amendment or waiver of these codes may be made only by the board of directors upon a recommendation of the audit committee, and we intend to disclose any such amendment or waiver on our website at www.flocard.com.
| Item 11. | Executive Compensation. |
Summary Compensation Table
We were incorporated on March 9, 2007. No compensation was earned by, awarded to or paid to our principal executive officer and our two other most highly compensated executive officers in 2006. The following table sets forth information concerning the compensation earned during the fiscal year ended December 31, 2007 by such officers:
SUMMARY COMPENSATION TABLE
| Name and Principal Position |
Year | Salary ($) | Bonus ($) | All Other Compensation ($) |
Total ($) | |||||||
| Glenn L. Argenbright |
2007 | $ | 240,000 | | | $ | 240,000 | |||||
| Luke A. Thomas |
2007 | 150,000 | | | 150,000 | |||||||
| Fred Fischer |
2007 | 158,700 | | | 158,700 | |||||||
Employment Agreements, Severance Arrangements, Performance-Based Incentives
We have entered into employment agreements with certain of our executive officers. Our employment arrangements with our named executive officers are described below.
Glenn L. Argenbright. Effective November 28, 2007, we entered into an employment agreement with Glenn L. Argenbright, our President, Chief Executive Officer and Secretary. Under his employment agreement, Mr. Argenbright is eligible to receive an annual base salary of $225,000 and incentive compensation based on achievement of targeted goals and objectives. Mr. Argenbright will be reimbursed for reasonable, out-of-pocket business expenses and is eligible for customary benefits generally available to our executive employees, subject to the terms and conditions of our plan documents. Our benefits currently include medical and dental care plans, flexible spending accounts for health and dependent care, a 401(k) plan, paid time off, and life insurance. Mr. Argenbrights employment is at will and may be terminated by Mr. Argenbright or by us at any time, with or without cause. In the event Mr. Argenbright voluntarily resigns without good reason or we terminate him for
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cause, he will only receive his base salary then in effect and benefits earned and payable as of the date of termination. In the event Mr. Argenbright resigns with good reason or we terminate him without cause, subject to his compliance with the surviving terms of the employment agreement and his execution of a full general release, we must pay him a severance package. The severance package would include: (a) a lump sum amount equivalent to 9 months of his then-effective base salary plus benefits, payable on the next company payday; (b) payment of his COBRA insurance premiums for 9 months; (c) the right to retain his laptop computer and personal digital assistant, subject to his delivery of such devices to us for removal of proprietary information; and (d) 100% acceleration as of the termination date of all of his then-unvested options to acquire shares of our common stock.
Luke A. Thomas. Effective April 1, 2007, we entered into an employment agreement with Luke A. Thomas, our Executive Vice President, Strategy. Under his employment agreement, Mr. Thomas is eligible to receive an annual base salary of $150,000 and incentive compensation based on achievement of targeted goals and objectives. Mr. Thomas will be reimbursed for reasonable, out-of-pocket business expenses and is eligible for customary benefits generally available to our executive employees, subject to the terms and conditions of our plan documents. Our benefits currently include medical and dental care plans, flexible spending accounts for health and dependent care, a 401(k) plan, paid time off, and life insurance. Mr. Thomass employment is at will and may be terminated by Mr. Thomas or by us at any time, with or without cause. In the event Mr. Thomas voluntarily resigns or we terminate him for cause, he will only receive his base salary then in effect and benefits earned and payable as of the date of termination. In the event we terminate Mr. Thomas without cause, we must provide him 30 days advance written notice and, subject to his compliance with the surviving terms of the employment agreement and his execution of a full general release, we must pay him a severance amount equivalent to 6 months of his then-effective base salary plus benefits.
Fred P. Fischer. Effective April 1, 2007, we entered into an employment agreement with Fred P. Fischer, our Senior Vice President, Sales. Under his employment agreement, Mr. Fischer is eligible to receive an annual base salary of $158,700 and incentive compensation based on achievement of targeted goals and objectives. Mr. Fischer will be reimbursed for reasonable, out-of-pocket business expenses and is eligible for customary benefits generally available to our executive employees, subject to the terms and conditions of our plan documents. Our benefits currently include medical and dental care plans, flexible spending accounts for health and dependent care, a 401(k) plan, paid time off, and life insurance. Mr. Fischers employment is at will and may be terminated by Mr. Fischer or by us at any time, with or without cause. In the event Mr. Fischer voluntarily resigns or we terminate him for cause, he will only receive his base salary then in effect and benefits earned and payable as of the date of termination. In the event we terminate Mr. Fischer without cause, we must provide him 30 days advance written notice and, subject to his compliance with the surviving terms of the employment agreement and his execution of a full general release, we must pay him a severance amount equivalent to 4 months of his then-effective base salary plus benefits.
Outstanding Equity Awards at Fiscal Year End
As of the end of our fiscal year ended December 31, 2007, there were no outstanding equity awards.
Compensation of Directors
In 2007, our directors did not receive compensation for their services to us as members of our board of directors. Our board of directors, based on competitive data, determined the cash and equity compensation structure as set forth below to be paid to members of the board of directors and committees of the board of directors who are not employees, effective as of January 1, 2008:
| | each non-employee director receives (i) an annual retainer of $15,000, payable in quarterly installments, (ii) an annual grant of stock purchase rights for our common stock (with a purchase price of $0.01 per share), granted concurrently with our annual meeting, valued at $30,000 based on publicly quoted prices from the preceding trading day, and vesting one year later if the director shall have served on our board until such time, |
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| and (iii) $1,000 for each full board or committee meeting attended in person and $500 for each full board or committee meeting attended telephonically; |
| | the audit committee chair receives an annual retainer of $10,000, payable in quarterly installments; |
| | each non-employee audit committee member other than the chair receives an annual retainer of $5,000, payable in quarterly installments; |
| | other committee chairs receive annual retainers of $5,000, payable in quarterly installments; |
| | other committee members other than chairs receive annual retainers of $2,500, payable in quarterly installments; |
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. |
Equity Compensation Plan Information
We currently maintain one compensation plan that provides for the issuance of our common stock to officers and other employees, directors and consultants. This is our 2007 Equity Incentive Plan, which has been approved by our stockholders. The following table sets forth information regarding outstanding options and shares reserved for future issuance under the foregoing plan as of December 31, 2007:
| Plan Category |
Number of shares to be issued upon exercise of outstanding options, warrants and rights |
Weighted- average exercise price of outstanding options, warrants and rights |
Number of shares remaining available for future issuance under equity compensation plans |
|||||
| Equity compensation plans approved by stockholders |
| $ | | 1,300,000 | (1) | |||
| Equity compensation plans not approved by stockholders |
| | | |||||
| Total |
| | 1,300,000 | |||||
| (1) | Under the terms of the 2007 Plan, the maximum aggregate number of shares that may be issued under our 2007 Plan shall be cumulatively increased on April 1, 2008, and on each subsequent April 1 through and including April 1, 2017, by a number of shares equal to the smaller of (i) five percent (5%) of the number of shares of common tock issued and outstanding on the immediately preceding March 31 or (ii) an amount determined by our board of directors. |
FLO Corporation 2007 Equity Incentive Plan
We have one equity incentive plan, the FLO Corporation 2007 Equity Incentive Plan, or our 2007 Plan. Our 2007 Plan is administered by our compensation committee. The purpose of our 2007 Plan is to advance the interests of FLO Corporation and our stockholders by attracting, retaining and rewarding persons performing services for us and to motivate such persons to contribute to our growth and profitability.
Issuance of Awards. The issuance of awards under our 2007 Plan is at the discretion of our board of directors, which has the authority to determine the persons to whom any awards shall be granted and the terms, conditions and restrictions applicable to any award. Under our 2007 Plan, we may grant stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, and other cash-based or stock-based awards to employees and consultants. Our 2007 Plan also authorizes the grant of awards of stock options, stock appreciation rights, restricted stock and restricted stock units to non-employee members of the board of directors and deferred compensation awards to officers, directors and certain management or highly compensated employees. Our 2007 Plan authorizes the issuance of up to 1,300,000 shares of our common stock for the foregoing awards. As of December 31, 2007, we had made no awards under our 2007 Plan and 1,300,000
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shares were available for future awards under our 2007 Plan. As of December 31, 2007, we had not adopted any performance targets or other goals or objectives that must be met in order to issue awards under our 2007 Plan and we had not yet determined whether we will do so.
Exercise Price for Options. The exercise price per share for a stock option grant must be no less than 100% of the fair market value per share on the date of grant. The exercise price per share for an incentive stock option grant to an employee who, at the time of grant, owns stock representing more than 10% of the voting power of all classes of stock of Saflink or any parent or subsidiary, must be no less than 110% of the fair market value per share on the date of grant. For nonstatutory stock option grants, the administrator determines the exercise price per share.
Payment of Exercise Price. Generally, the option exercise price may be paid in cash, by check, by cashless exercise, by net exercise or by tender or attestation of ownership of shares having a fair market value not less than the exercise price and that either (A) have been owned by the optionee for more than six months and not used for another exercise by tender or attestation, or (B) were not acquired, directly or indirectly, from us.
Exercisability and Vesting. At the time an award is granted, the administrator must fix the period within which the award may be exercised and determine any conditions that must be satisfied before the award may be exercised.
Term of Options. The maximum term of an option granted under our 2007 Plan is ten years.
Transferability of Awards. Options are nontransferable by the optionee other than by will or by the laws of descent and distribution and are exercisable during the optionees lifetime only by the optionee. Our 2007 Plan also limits the transferability of stock appreciation rights, restricted stock awards, restricted stock units and, prior to payment or settlement, performance awards, cash-based awards and other stock-based awards.
Change in Control. Our 2007 Plan provides that in the event of our merger with or into another corporation, the sale of substantially all of our assets, or the sale or exchange of more than 50% of our voting stock, each outstanding award shall be assumed or an equivalent award substituted by the surviving, continuing, successor or purchasing corporation or a parent thereof. The administrator may also deem an award assumed if the award confers the right to the award-holder to receive, for each share of stock subject to an award immediately prior to the change in control, the consideration that a stockholder is entitled on the effective date of the change in control.
Amendment and Termination. The administrator may at any time amend, suspend or terminate our 2007 Plan.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth, as of April 25, 2008, information regarding beneficial ownership of our capital stock by:
| | each person, or group of affiliated persons, known by us to be the beneficial owner of 5% or more of any class of our voting securities; |
| | each of our current directors and nominees; |
| | each of our current named executive officers; and |
| | all current directors and named executive officers as a group. |
Beneficial ownership is determined according to the rules of the SEC. Beneficial ownership means that a person has or shares voting or investment power of a security and includes any securities that person or group has
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the right to acquire within 60 days after the measurement date, such as pursuant to warrants or conversion privileges in connection with our Series A preferred stock. This table is based on information supplied by officers, directors and principal stockholders. Except as otherwise indicated, we believe that each of the beneficial owners of the common stock listed below, based on the information such beneficial owner has given to us, has sole investment and voting power with respect to such beneficial owners shares, except where community property laws may apply.
For purposes of the columns for common stock and Series A preferred stock, in accordance with rules of the SEC, shares of common stock underlying securities that a person has the right to acquire within 60 days after the measurement date are deemed to be beneficially owned by such person for the purpose of computing the persons percentage ownership but are not treated as outstanding for the purpose of computing any other persons ownership percentage. The percentages of common stock on an as-converted basis were calculated assuming that all issued and outstanding shares of our Series A preferred stock have converted into shares our common stock, at a conversion ratio of 1-to-4,000 pursuant to our amended and restated certificate of incorporation, but assuming no exercise of issued and outstanding warrants.
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
| Common Stock | Series A Preferred Stock |
|||||||||||||||
| Name and Address of Beneficial Owner (1) |
Total Outstanding |
Shares Underlying Convertible Securities (2) |
Total | Percent of Class (3) |
Total | Percent of Class (4) |
||||||||||
| Directors and named executive officers |
||||||||||||||||
| Glenn L. Argenbright |
| 102,905 | (5) | 102,905 | 5.0 | % | 18.8536 | 1.3 | % | |||||||
| Steven M. Oyer |
50,000 | (6) | 47,636 | (7) | 97,636 | 4.8 | % | 3.1422 | * | |||||||
| Kevin Mitchell |
25,000 | (8) | | 25,000 | 1.3 | % | | | ||||||||
| Paul Aaronson |
25,000 | (8) | | 25,000 | 1.3 | % | | | ||||||||
| Luke A. Thomas |
| | | | | | ||||||||||
| Fred P. Fischer |
| | | | | | ||||||||||
| All directors and executive officers as a group (7 persons) |
100,000 | 150,541 | 250,541 | 11.4 | % | 21.9958 | 1.5 | % | ||||||||
| Beneficial owners of 5% |
||||||||||||||||
| Cranshire Capital LP (9) |
| 217,266 | 217,266 | 10.0 | % | 35.6122 | 2.4 | % | ||||||||
| Crescent Capital (10) |
| 217,266 | 217,266 | 10.0 | % | 35.6122 | 2.4 | % | ||||||||
| Entities affiliated with Enable Capital (11) |
| | | | 222.2221 | 14.4 | % | |||||||||
| Forum Partners (12) |
| 648,935 | 648,935 | 24.9 | % | 81.1168 | 5.5 | % | ||||||||
| International Ram Associates, LLC (13) |
| 603,315 | 603,315 | 23.6 | % | 75.4143 | 5.1 | % | ||||||||
| Entities affiliated with Lyrical Opportunity (14) |
| 1,777,776 | 1,777,776 | 47.6 | % | 222.2221 | 15.0 | % | ||||||||
| Melleos Onshore Fund LLC (15) |
| 414,879 | 414,879 | 17.5 | % | 51.8599 | 3.5 | % | ||||||||
| Entities affiliated with Soundpost Capital (16) |
1,111,108 | 1,111,108 | 36.2 | % | 138.8885 | 9.4 | % | |||||||||
| SXJE LLC (17) |
| 2,777,776 | 2,777,776 | 58.7 | % | 347.2222 | 23.4 | % | ||||||||
| * | Less than one percent. |
| (1) | Except as otherwise indicated, the persons named in this table have sole voting and investment power with respect to all shares of common stock shown as beneficially owned by them, subject to community property laws where applicable and to the information contained in the footnotes to this table. Unless otherwise indicated, the address of the beneficial owner is FLO Corporation, 14000 Thunderbolt Place, Building R, Chantilly, Virginia 20151. |
| (2) | Represents the aggregate number of shares of our common stock underlying convertible securities, options or warrants convertible or exercisable within 60 days of April 25, 2008. |
| (3) | Calculated on the basis of 1,955,618 shares of our common stock issued and outstanding as of April 25, 2008, provided that any additional shares of common stock that a stockholder has the right to acquire within 60 days after April 25, 2008 are deemed to be outstanding for the purpose of calculating that stockholders percentage beneficial ownership. |
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| (4) | Calculated on the basis of 1,482.9058 shares of our Series A preferred stock issued and outstanding as of April 25, 2008. |
| (5) | Includes 75,414 shares of common stock issuable upon conversion of shares of Series A preferred stock and 27,491 shares of common stock issuable upon exercise of warrants. |
| (6) | Consists of 25,000 shares of common stock and 25,000 shares of restricted stock that will vest in full on February 1, 2009. |
| (7) | Consists of 12,568 shares of common stock issuable upon conversion of shares of Series A preferred stock, 7,500 shares issuable upon conversion of 12% senior convertible notes and 27,568 shares issuable upon exercise of warrants. |
| (8) | Consists of restricted stock that will vest in full on February 1, 2009. |
| (9) | Includes 142,448 shares of common stock issuable upon conversion of Series A preferred stock and 74,818 shares of common stock issuable on exercise of warrants. Downsview Capital, Inc. is the general partner of Cranshire Capital, L.P. Mitchell P. Kopin is the president of Downsview Capital, Inc. and, as such, has voting and investment power. Downsview Capital, Inc. and Mr. Kopin disclaim beneficial ownership of such securities. The address of this stockholder is 3100 Dundee Road, Suite 703, Northbrook, IL 60062. |
| (10) | Includes 142,448 shares of common stock issuable upon conversion of Series A preferred stock and 74,818 shares of common stock issuable upon exercise of warrants. Cantara (Switzerland) SA is the investment advisor to Crescent International Ltd. Maxi Brezzi and Bachir Taleb-Ibrahimi are managers of Cantara (Switzerland) SA, and as such have authority to vote and dispose of the securities held by Crescent International Ltd. Messrs. Brezzi and Taleb-Ibrahimi disclaim beneficial ownership of such securities. The address of this stockholder is 84 Avenue Louis-Casai, CH-1216, Cointrin/Geneva, Switzerland. |
| (11) | Mitch Levine is the managing partner of Enable Growth Partners LP (EGP), Enable Opportunity Partners LP (EOP) and Pierce Diversified Strategy Master Fund LLC, Ena (PDSMF) and, as such, has voting and investment power with respect to these securities. EGP, EOP and PDSMF are affiliated with Enable Capital, LLC, a registered broker-dealer. EGP, EOP and PDSMF have indicated to us that each acquired the securities in the ordinary course of business and, at the time of acquisition, did not have any plans or proposals, directly or with another person, to distribute the securities. The address for these stockholders is One Ferry Building, Suite 255, San Francisco, CA 94111. |
| (12) | Includes 324,467 shares of common stock issuable upon conversion of Series A preferred stock and 324,468 shares of common stock issuable upon exercise of warrants. Arnold Mullen is the managing partner of Forum Partners and, as such, has voting and investment power. The address of this stockholder is 3801 PGA Boulevard Street, 910, Palm Beach Gardens, FL 33410. |
| (13) | Includes 301,657 shares of common stock issuable upon conversion of Series A preferred stock and 301,658 shares of common stock issuable upon exercise of warrants. Chris Mashburn is president and chief executive officer of International RAM Associates, LLC and, by virtue of his positions, may be deemed to beneficially own such shares. Mr. Mashburn disclaims beneficial ownership of such shares. The address of this stockholder is 11044 Research Boulevard, Suite D-200, Austin, TX 78759. |
| (14) | Includes 462,622 shares of common stock issuable upon conversion of Series A preferred stock and 462,622 shares of common stock issuable upon exercise of warrants held by Lyrical Opportunity Partners II LP and 426,266 shares of common stock issuable upon conversion of Series A preferred stock and 426,266 shares of common stock issuable upon exercise of warrants held by Lyrical Opportunity Partners II Ltd. Jeffrey Keswin is managing member of the general partner of the general partner of Lyrical Opportunity Partners II LP, and is managing member of the general partner of Lyrical Opportunity Partners II Ltd, and therefore has voting and investment power with respect to these securities. The address of these stockholders is 405 Park Avenue, 6th Floor, New York, NY 10022. |
| (15) | Includes 207,439 shares of common stock issuable upon conversion of Series A preferred stock and 207,440 shares of common stock issuable upon exercise of warrants. Melleos Capital Management LLC (MCM) is the managing member of Melleos Onshore Fund LLC. Kevin E. Melly, as managing member of MOF, has voting and investment power with respect to these securities. The address of this stockholder is 10 East 40th Street, Suite 3601, New York, NY 10016. |
| (16) | Includes 97,414 shares of common stock issuable upon conversion of Series A preferred stock and 97,414 shares of common stock issuable upon exercise of warrants held by HFR HE Soundpost Master Trust (HFR), 219,756 shares of common stock issuable upon conversion of Series A preferred stock and 219,756 shares of common stock issuable upon exercise of warrants held by Soundpost Capital Offshore, Ltd. (SCO), and 238,384 shares of common stock issuable upon conversion of Series A preferred stock and 238,384 shares of common stock issuable upon exercise of warrants held by Soundpost Capital, LP (SC). Soundpost Partners, LP (SPLP) is the trading manager of HFR and investment manager of SCO and SC. Jaime Lester is the investment manager of HFR, the managing member of SCO and SC, and the general partner of SPLP. As such, Mr. Lester has voting and investment power with respect to these securities. The address of HFR is 10 S. Riverside Plaza, Suite 700, Chicago, IL 60606, and the address of Jaime Lester, SCO and SC is 405 Park Avenue, 6th Floor, New York, NY 10022. |
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| (17) | Includes 1,388,888 shares of common stock issuable upon conversion of Series A preferred stock and 1,388,888 shares of common stock issuable upon exercise of warrants. Sam Eyde, as managing member of SXJE LLC, has voting and investment power with respect to these securities. The address of this stockholder is 2800 Bryon Circle, Lansing, MI 48912. |
| Item 13. | Certain Relationships and Related Transactions, and Director Independence |
This summary of certain agreements we have entered into with our stockholders does not purport to be complete and is qualified in its entirety by reference to the respective agreements, a copy of each of which is filed or incorporated by reference as an exhibit to this report. We believe the terms and conditions set forth in such agreements are reasonable and customary for transactions of these types.
12% Convertible Note Financing
On April 2, 2008, we completed an initial closing of a private placement to accredited investors of 12% senior convertible notes. The purchasers in the initial closing included Mr. Argenbright, who is our president, chief executive officer, secretary and a director, and Steven M. Oyer, who is a director.
The notes we issued in connection with the initial closing were for an aggregate amount of approximately $1.6 million in principal and are due April 3, 2010. In connection with the initial closing, we also issued warrants to purchase up to 1,590,511 shares of our common stock at an exercise price of $0.75 per share and warrants to purchase up to 1,590,511 shares of our common stock at an exercise price of $0.60 per share. The warrants are exercisable for a period of five years or, in the case of the $0.60 warrants, the earlier of five years or nine months after the date that a registration statement covering the resale of the underlying shares under the Securities Act of 1933 is declared effective by the SEC.
Interest on the notes is payable quarterly commencing on July 1, 2008. We may pay interest in cash or additional notes, at our discretion. Upon an event of default, we have agreed to pay to the holder, in cash on demand, interest at 15% per annum on the outstanding principal balance from the date of such event of default until it is cured. In addition, upon an event of default, a holder of a note may declare due and payable the entire unpaid principal balance and all accrued and unpaid interest or demand that such amount be converted into shares of common stock at the conversion rate then in effect. The notes contain standard events of default and remedies, including acceleration, as well as a 110% prepayment obligation in the event of certain major transactions. If we fail to comply with a proper conversion demand, we may be required to pay monetary damages to the holder. Under certain limited circumstances, we may be required to prepay the notes in cash at the greater of 125% of principal or (if conversion is unavailable) a market-based conversion value, plus any other amounts due.
Holders may convert their notes into shares of our common stock at any time at the conversion rate then in effect. The notes will automatically convert into shares of our common stock at the conversion rate then in effect on the first date after October 3, 2010 on which the closing price of our common stock has exceeded $3.00 for twenty consecutive trading days. The initial conversion rate is $1.00, subject to customary adjustments for stock splits, dividends, reclassifications, reorganizations, mergers and similar transactions. In general, if we issue additional securities linked to our common stock for a price per share of such common stock below the then applicable conversion rate, the conversion rate will be reduced to such price, except that any such reductions in the conversion rate will be made on a volume weighted average basis for any such issuances we make after we raise an additional $10 million in an equity or equity-linked financing with a price of at least $1.00 per share. If the 20-day volume weighted-average price per share at which our common stock is traded or quoted on the first anniversary of the date of issuance of the notes is less than the then applicable conversion rate, the conversion rate will be reset to the greater of $0.50 or such weighted-average price.
In connection with the initial closing of the financing, we entered into exchange agreements with certain holders of shares of our Series A preferred stock who purchased notes in an amount at least equal to 30% of the
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stated value of such holders shares of Series A preferred stock. Pursuant to the exchange agreements, we agreed (1) to exchange each such holders shares of Series A preferred stock (together with the dividends accrued thereon) for shares of our Series B preferred stock, (2) to issue each such holder warrants to purchase a number of shares of our common stock equal to the whole dollar amount of the stated value of such holders shares of Series A preferred stock plus such accrued dividends at an exercise price of $0.60 per share, and (3) to amend each such holders Series A-1 warrants and Series A-2 warrants to reduce the exercise prices from $3.00 to $1.50, and from $4.00 to $2.00, respectively. The warrants are exercisable for a period of five years or, in the case of the $0.60 warrants, the earlier of five years or nine months after the date that a registration statement covering the resale of the underlying shares under the Securities Act of 1933 is declared effective by the SEC.
Registration Rights Agreements
In connection with our Series A preferred stock financing, we entered into, and have amended, a registration rights agreement with certain of our stockholders. Parties to the agreement include Glenn L. Argenbright, who is our President, Chief Executive Officer and Secretary and a member of our board of directors, Steven M. Oyer, who is a member of our board of directors, and other investors in our Series A preferred stock financing who are or were beneficial owners of more than 5% of a class of our voting securities, including Saflink Corporation (now known as IdentiPHI, Inc.), Enable Growth Partners LP, Enable Opportunity Partners LP, Lyrical Opportunity Partners II LP, Lyrical Opportunity Partners II Ltd, Melleos Onshore Fund LLC, Forum Partners, International RAM, Cranshire Capital LP, Crescent Capital, London Family Trust, Robert S. London, Trustee, Nite Capital, Mary Farrell, Pierce Diversified Master Fund LLC ENA, Soundpost Capital Offshore, Ltd., Soundpost Capital, LP, Soundpost Master Trust, SXJE LLC and ViewTrade Securities, Inc. Under the agreement, we agreed to file with the SEC a registration statement to register our common stock under the Securities Exchange Act of 1934, as amended, or the Exchange Act, on or before October 5, 2007. We agreed to use commercially reasonable efforts to file with the SEC a registration statement covering the resale of the shares of common stock issuable upon conversion of our Series A preferred stock and upon the exercise of the Series A-1 warrants and the Series A-2 warrants and to keep this registration statement continuously effective for up to three years after the effective date.
In connection with our 12% senior convertible note financing, we entered into a registration rights agreement with the purchasers of those notes. Parties to the agreement include Messrs. Argenbright and Oyer. Under the agreement, we agreed to file with the SEC, within 45 days from the issuance of the notes, a registration statement covering the resale of the shares of common stock issuable upon the exercise of the warrants issued together with the notes and to use our commercially reasonable efforts to keep this registration statement continuously effective for up to five years after the date the notes were issued.
Asset Purchase
On April 16, 2007, we purchased all of the assets of Saflink and assumed certain liabilities related to its Registered Traveler business. We paid $6.3 million for the assets by issuing Saflink a promissory note that accrues interest at 8% per annum and is due April 16, 2008. On August 24, 2007, we paid Saflink the remaining principal balance of the promissory note through a combination of cash and the cancellation of approximately $1.9 million of outstanding Saflink debt that had been assigned to us. At the time of the asset purchase, Saflink owned all of our issued and outstanding shares of common stock. IdentiPHI, Inc. (formerly Saflink) no longer owns any of our capital stock.
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Promissory Note Issued by Saflink to Glenn L. Argenbright
In connection with Saflinks severance agreement with Mr. Argenbright, Saflink issued Mr. Argenbright a promissory note for $140,000 accruing interest at 8% per annum and due and payable in four equal quarterly installments, with the first such installment due April 1, 2008. Mr. Argenbright participated in our April 2007 issuance of approximately $3.5 million in aggregate convertible promissory notes, which automatically converted into our Series A preferred stock in connection with our Series A preferred stock financings in July and August of 2007. In consideration for $150,000 in convertible notes in that offering, Mr. Argenbright paid us $10,000 in cash and assigned us the $140,000 note issued to him by Saflink, which at the time of the transaction owned all of our issued and outstanding common stock. We cancelled the $140,000 note in exchange for a dollar-for-dollar reduction in the principal amount of debt we owed to Saflink. We believe that the terms and conditions of the note were reasonable and customary for a transaction of this type.
Software Development Agreement
On May 29, 2007, we entered into a software development agreement with International RAM. Chris Mashburn, a former director, serves as Chief Executive Officer and President of International RAM. Under the agreement, International RAM agreed to develop technical designs for and use its best efforts to complete our facility server application, authentication application and related software, components and code. We will own all materials, software, tools, data, inventions, works of authorship and other innovations that International RAM may develop in the course of performing its services to us, and we acquired certain licenses of International RAMs prior intellectual property. During the term of the agreement, International RAM employees assigned to the project may not perform services or provide material or information to any of our competitors. We will pay hourly fees according to a fee schedule to International RAM, reimburse its approved out-of-pocket expenses, and pay taxes in connection with the services its provides. We have paid $300,000 to International RAM as a deposit against the costs and fees that accrue under the agreement, which we expect will be the total dollar value of the transaction. We may terminate the agreement for any reason upon 30-days written notice, and either party may terminate the agreement immediately in the event of a material breach.
Consulting Agreement
On June 8, 2007, we entered into a consulting agreement with Business Travel Coalition, Inc., or BTC. Kevin M. Mitchell, a member of our board of directors, serves as chairman of BTC. Under the agreement, BTC agreed to provide marketing, communications, industry advisory, and strategic consulting services to us. During the consulting period, we will pay a monthly fee of $20,000 to BTC and reimburse its approved out-of-pocket expenses. We expect that the dollar value involved in the transaction, assuming the agreement continues through its term, will be approximately $720,000. The agreement will continue until February 28, 2010 unless earlier terminated. Either party may terminate the agreement for any reason upon 60-days written notice or immediately upon the other partys uncured material breach.
Director Independence
Under Rule 4200 of the NASDAQ Stock Market, an independent director means a person other than an executive officer or employee of the company or any other individual having a relationship which, in the opinion of the issuers board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. A director is not independent under this standard if the director is, or at any time during the past three years was, employed by the company, or if the director is an executive officer of any organization to which the company made, or from which the company received, payments for property or services in the current or any of the past three fiscal years that exceed 5% of the recipients consolidated gross revenues for that year, or $200,000, whichever is more, subject to certain exclusions.
Under Rule 4200 of the NASDAQ Stock Market, Paul R. Aaronson is considered independent. Glenn L. Argenbright is not considered independent because he is an executive officer of FLO. Steven M. Oyer is not
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considered independent because of transactions in property or services between us and IdentiPHI, where he serves as an executive officer. Kevin M. Mitchell is not considered independent because of transactions in property or services between us and BTC, where he serves as an executive officer.
| Item 14. | Principal Accounting Fees and Services. |
The following table sets forth the aggregate fees billed to us for the fiscal year ended December 31, 2007, by BDO Seidman, LLP, our independent auditors:
| Fiscal 2007 | |||
| Audit Fees (1) |
$ | 196,021 | |
| Audit-Related Fees |
| ||
| Tax Fees |
| ||
| All Other Fees |
| ||
| (1) | Audit Fees consist of fees billed for professional services rendered for the audit of our annual financial statements and review of the interim financial statements included in quarterly reports and services that are normally provided by BDO Seidman, LLP in connection with statutory and regulatory filings or engagements, including fees incurred related to our registration statement of Form 10-SB. |
Our audit committees policy is to pre-approve in advance all audit and permissible non-audit services provided by our independent auditors. These services may include audit services, audit-related services, tax services and other services. Authorization is generally provided for up to one year, and any pre-approval is detailed as to the particular service or category of services. Our board of directors approved all audit and non-audit services provided by our independent auditors in connection with the audit of our 2007 financial statements.
Our board of directors has considered the role of BDO Seidman, LLP in providing tax and other non-audit services to us and has concluded that such services are compatible with BDO Seidmans independence as our auditors.
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PART IV
| Item 15. | Exhibits, Financial Statement Schedules. |
| Exhibit No. |
Description |
Filed Herewith |
Incorporated by Reference | |||||||||
| Form | Exhibit No. | File No. | Filing Date | |||||||||
| 10 | Summary of Director Compensation Arrangement (included in Part III, Item 11 of this report)* | X | ||||||||||
| 14 | Code of Business Conduct and Ethics | X | ||||||||||
| 31.1 | Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | X | ||||||||||
| 31.2 | Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | X | ||||||||||
| * | Compensatory plan or arrangement. |
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: April 29, 2008
| FLO CORPORATION | ||
| By: |
/s/ GLENN L. ARGENBRIGHT | |
| Glenn L. Argenbright President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /S/ GLENN L. ARGENBRIGHT |
President, Chief Executive Officer and Secretary |
April 29, 2008 | ||
| Glenn L. Argenbright | (Principal Executive, Financial and Accounting Officer) | |||
| * |
Director | April 29, 2008 | ||
| Steven M. Oyer | ||||
| * Kevin M. Mitchell |
Director | April 29, 2008 | ||
| * Paul R. Aaronson |
Director | April 29, 2008 | ||
| *By: | /S/ GLENN L. ARGENBRIGHT | |
| Glenn L. Argenbright Attorney-in-Fact | ||
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Exhibit 14
FLO CORPORATION
CODE OF BUSINESS CONDUCT AND ETHICS
A Message About the Code from the President and CEO:
To All Officers, Directors and Employees:
One of our Companys most valuable assets is its integrity. Protecting this asset is the job of everyone in the Company. To that end, we have established this Code of Business Conduct and Ethics to help our employees comply with the law and maintain the highest standards of ethical conduct. The Code applies to every officer, director and employee. We also expect that those with whom we do business (including our agents, consultants, suppliers and customers) will also adhere to the Code. Our Code is designed to help you comply with the law and maintain the highest standards of ethical conduct. The Code does not cover every issue that may arise, but it sets out basic principles and a methodology to help guide you in the attainment of this common goal.
All of the Companys officers, directors and employees must carry out their duties in accordance with the policies set forth in this Code and with applicable laws and regulations. To the extent that other Company policies and procedures conflict with this Code, employees should follow this Code. Any violation of applicable law or any deviation from the standards embodied in this Code will result in disciplinary action up to and including termination. Disciplinary action also may apply to an employees supervisor who directs or approves the employees improper actions, or is aware of those actions but does not act appropriately to correct them. In addition to imposing its own discipline, the Company may also bring suspected violations of law to the attention of the appropriate law enforcement personnel. If you are in a situation which you believe may violate or lead to a violation of this Code, the procedures described in Section 9 of the Code should be followed.
| /S/ GLENN L. ARGENBRIGHT |
| Glenn L. Argenbright, President, Chief Executive Officer and Secretary |
FLO CORPORATION
CODE OF BUSINESS CONDUCT AND ETHICS
| 1. | Policy Statement |
It is the policy of FLO Corporation (the Company) to conduct its business affairs honestly and in an ethical manner. That goal cannot be achieved unless you individually accept your responsibility to promote integrity and demonstrate the highest level of ethical conduct in all of your activities. Activities that may call into question the Companys reputation or integrity should be avoided. The Company understands that not every situation is black and white. The key to compliance with this Code of Business Conduct and Ethics (this Code) is exercising good judgment. This means following the spirit of this Code and the law, doing the right thing and acting ethically even when the law is not specific.
| 2. | Compliance with Laws, Rules and Regulations |
The Company seeks to comply with both the letter and spirit of the laws and regulations in all countries in which it operates.
Numerous federal, state and local laws and regulations define and establish obligations with which the Company, its employees and agents must comply. Any employee or agent who violates these laws or regulations not only risks individual indictment, prosecution and penalties, and civil actions and penalties, but also subjects the Company to the same risks and penalties. Any employee or agent who violates these laws may be subject to immediate disciplinary action, including possible termination of his or her employment or affiliation with the Company. If you are uncertain whether a particular action or course of conduct is permissible, you should refrain from engaging in the action or conduct until a determination has been made by the appropriate officer. When faced with situations that require some knowledge of the law, employees should seek advice from supervisors, managers, the Compliance Officer, or other appropriate personnel.
Set forth below are some of the major federal, state and local laws applicable to the Company and the industry in which we operate. This outline is not intended to identify all applicable laws. As explained below, employees should always consult the Compliance Officer with specific questions.
| | securities laws and such other laws as are enforced by the Securities and Exchange Commission; |
| | tax laws; |
| | antitrust laws; |
| | employment laws; |
| | fraud laws; |
| | false statements and false claim laws; |
| | bribery and gratuity laws; and |
| | conspiracy laws. |
| 3. | Corporate Opportunities |
You owe a duty to the Company to advance its legitimate interests when the opportunity to do so arises.
Examples of prohibited conduct by employees with respect to corporate opportunities include, but are not limited to:
| | taking for themselves opportunities that are discovered through the use of corporate property, information or position; |
| | using corporate property, information, or position for personal gain; and |
| | competing with the Company. |
If you have any doubt concerning your obligations with respect to any opportunity that is presented to you, you should seek advice from supervisors, managers or other appropriate personnel.
| 4. | Fair Dealing |
Our goal is to be regarded as a company that does business with integrity.
You should endeavor to deal fairly with the Companys customers, suppliers, competitors, and employees. Under federal and state laws, the Company is prohibited from engaging in unfair methods of competition, and unfair or deceptive acts and practices. You should not take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts, or any other unfair-dealing practice.
Examples of prohibited conduct include, but are not limited to:
| | making affirmative claims about the Companys products without having a reasonable basis for doing so; |
| | bribery or payoffs to induce business or breaches of contracts by others; |
| | mislabeling products; |
| | acquiring a competitors trade secrets through bribery or theft; or |
| | making false, deceptive or disparaging claims or comparisons about competitors or their products. |
In addition, public statements by or on behalf of the Company should always be accurate, have a reasonable basis in fact, and should not be misleading. Public statements may include such things as advertising, promotional activities and sales presentations.
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| 5. | Insider Trading |
You should never trade securities on the basis of confidential information acquired through their employment relationship.
Federal law and Company policy prohibit you, directly or indirectly, from purchasing or selling Company stock through the use of confidential information concerning the Company. All non-public information about the Company should be considered confidential information. This same prohibition applies to trading in the stock of other publicly held companies, such as existing or potential customers or suppliers, on the basis of confidential information. The tipping of others who might make an investment decision on the basis of this information is also illegal. If you have a question concerning appropriateness or legality of a particular securities transaction, it is imperative that you consult with the Companys Compliance Officer. A more complete description of the Companys Insider Trading Policy can be obtained from the Companys Compliance Officer.
| 6. | Conflicts of Interest |
You should avoid any situation in which your personal interests conflict or would appear to conflict with the Companys interests without the prior approval of the audit committee of the Companys board of directors.
You should avoid entering into situations in which your personal, family or financial interests may conflict with those of the Company. A conflict situation can arise:
| | when an employee, officer, or director, or a member of his or her family, or an affiliate of any of such parties, receives improper personal benefits as a result of his or her position in the Company; |
| | when an employee, officer, or director takes actions or has interests that make it difficult to perform his or her Company work objectively and effectively; |
| | where a Company employee, officer or director works simultaneously for a competitor, customer, or supplier; |
| | where an employee, officer or director has a financial interest in a customer, supplier, or competitor that may cause divided loyalty with the Company or the appearance of divided loyalty; |
| | if an employee, officer or director acquires an interest in property (such as real estate, patent rights or securities) where the Company has, or might have, an interest; |
| | through the making of loans to, or guarantees of obligations of, employees and their family members; or |
| | if any employee, officer or director divulges or uses the Companys confidential information for his or her own personal or business purposes. |
Conflicts are not always clear-cut. If you become aware of a conflict, potential conflict, or have a question as to a potential conflict, you should consult with higher levels of management or the Companys Compliance Officer and/or follow the procedures described in Section 9 of the Code. If you become involved in a situation that gives rise to an actual conflict, you must inform higher levels of management or the Companys Compliance Officer of the conflict.
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| 7. | Confidentiality |
All confidential information concerning the Company obtained by employees, officers, and directors is the property of the Company and must be protected.
Confidential information includes all non-public information that might be of use to competitors, or harmful to the Company or its customers, if disclosed. You must maintain the confidentiality of such information entrusted to you by the Company, its customers and its suppliers, except when disclosure is authorized by the Company or required by law. The obligation to keep this information confidential applies even to communications with family members.
Examples of confidential information include, but are not limited to: the Companys trade secrets; business trends and projections; information about financial performance; new product or marketing plans; information about potential acquisitions, divestitures and investments; stock splits, public or private securities offerings or changes in dividend policies or amounts; and existing or potential major contracts, orders, suppliers, customers or finance sources or the loss thereof.
The obligations of employees, officers and directors with respect to confidential information of the Company continue even after their employment relationship with the Company terminates. Each employees confidentiality obligations, and express agreement to abide by such obligations, is set forth in each employees confidentiality, nondisclosure and assignment agreement or similar agreement with the Company.
| 8. | Protection and Proper Use of Company Assets |
You should endeavor to protect the Companys assets and ensure their proper use.
Company assets are to be used only for legitimate business purposes of the Company and only by authorized employees or their designees. This includes both tangible and intangible assets. Intangible assets include, but are not limited to: intellectual property such as trade secrets, patents, trademarks and copyrights; business, marketing and service plans; databases; Company records; salary information; and any unpublished financial data and reports. Unauthorized alteration, destruction, use, disclosure or distribution of these assets violates Company policy and this Code. Any such action, as well as theft or waste of, or carelessness in using, these assets have a direct adverse impact on the Companys operations and profitability and will not be tolerated.
The Company provides computers, voice mail, electronic mail (e-mail), and Internet access to certain employees for the purpose of achieving the Companys business objectives. As a result, the Company has the right to access, reprint, publish, or retain any information created, sent or contained in any of the Companys computers or e-mail systems of any Company machine. You may not use e-mail, the Internet or voice mail for any illegal purpose or in any manner that is contrary to the Companys policies or the standards embodied in this Code.
You should not make copies of, or resell or transfer (externally or internally), copyrighted publications, including software, manuals, articles, books, and databases being used in the Company that were created by another entity and licensed to the Company unless you are authorized to do so under the applicable license agreement or by the fair use doctrine, such as for backup purposes.
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| 9. |
Reporting Violations of Company Policies1 |
You should report any violation or suspected violation of this Code to the appropriate Company personnel.
The Companys efforts to ensure observance of, and adherence to, the goals and policies outlined in this Code mandate that you bring any instance, occurrence or practice that you, in good faith, believe is inconsistent with or in violation of this Code to the attention of their supervisors, managers, or other appropriate personnel. The following is an approach to dealing with potential problem situations. At all times maintain a professional demeanor when dealing with such situations.
| | Discuss possible problems with a supervisor or other member of Company management. In the event you believe a violation of the Code has occurred or you have observed or become aware of conduct that appears to be contrary to the Code, immediately discuss the situation with your supervisor. If it would be inappropriate to discuss the issue with your supervisor, you should contact the Compliance Officer, who will promptly listen to your concerns and assess the situation. |
| | Use common sense and good judgment. Every employee and manager is expected to become familiar with and to understand the requirements of the Code. If you become aware of a suspected violation, dont try to investigate it or resolve it on your own. Prompt disclosure to the appropriate parties is vital to ensuring a thorough and timely investigation and resolution. A violation of the Code is a serious matter and could have legal implications. Allegations of such behavior are not taken lightly and should not be made to embarrass someone or put him or her in a false light. Reports of suspected violations should always be made in good faith. |
| | Internal investigation. When an alleged violation of the Code is reported, the Company shall take appropriate action in accordance with the compliance procedures outlined in Section 11 of the Code. Employees, officers and directors are expected to cooperate in internal investigations of misconduct. |
| | No fear of retaliation. It is a federal crime for anyone to intentionally retaliate against any person who provides truthful information to a law enforcement official concerning a possible violation of any federal law. In cases in which an employee reports a suspected violation in good faith and is not engaged in the questionable conduct, the Company will attempt to keep its discussions and actions confidential to the greatest extent possible. In the course of its investigation, the Company may find it necessary to share information with others on a need to know basis. No retaliation shall be taken against employees for reporting alleged violations while acting in good faith. |
| 1 |
For a more complete description of this policy, please refer to the Companys Whistle-blowing and Complaint Policy. |
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| 10. | Publication of the Code of Business Conduct and Ethics |
The most current version of the Companys Code of Business Conduct and Ethics will be posted and maintained on the Companys website.
| 11. | Waivers of the Code of Business Conduct and Ethics |
Any waiver of this Code for executive officers or directors may be made only by a committee entirely comprised of independent members of the Board of Directors and will be promptly disclosed to shareholders.
| 12. | Compliance Procedures |
The Company has established this Code of Business Conduct and Ethics as part of its overall policies and procedures. The Code applies to all Company employees in all locations. The Code is based on the Companys core values, good business practices and applicable law. The existence of a Code, however, does not ensure that directors, officers and employees will comply with it or act in a legal and ethical manner. To achieve optimal legal and ethical behavior, the individuals subject to the Code must know and understand the Code as it applies to them and as it applies to others. All employees must champion the Code and assist others in knowing and understanding it.
| | Compliance. Every employee, officer and director is expected to become familiar with and understand the requirements of the Code. Most important, each of those persons must comply with it. |
| | Management Responsibility. The Companys CEO shall be responsible for ensuring that the Code is established and effectively communicated to all employees. Although the day-to-day compliance issues will be the responsibility of the Companys managers, the CEO has ultimate accountability with respect to the overall implementation of and successful compliance with the Code. |
| | Corporate Compliance Officer. The Corporate Compliance Officer is the Companys CFO, or if the CFO is not available, the Companys CEO will serve as the alternate Corporate Compliance Officer. The Compliance Officers charter is with respect to communication, training and monitoring and overall compliance with the Code. The Compliance Officer will, with the assistance and cooperation of the Companys executives and managers, foster an atmosphere where employees are comfortable in communicating and/or reporting concerns and possible Code violations. |
| | Screening of Employees. No individual who has engaged in illegal or unethical behavior and/or who has been convicted of related crimes shall be allowed to occupy a position within the Company which involves the exercise of discretionary authority, without prior disclosure to and approval by the Companys Board of Directors. Any applicant for an employment position with the Company shall be required to disclose whether the individual has changed his or her name and whether he or she has ever been convicted of a crime. In addition, the Company shall reasonably inquire into the background and status of each prospective employee. The Company shall remove any person in a position of authority where there is any evidence that the person is not willing to comply with the Code. The Company shall implement procedures to terminate employees who are convicted of a crime. |
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| | Access to the Code. All employees may access the Code on the Companys internal website. In addition, each current employee will be provided with a copy of the Code. New employees will receive a copy of the Code as part of their new hire information. From time to time, the Company will sponsor employee training programs in which the Code and other Company policies and procedures will be discussed. |
| | Monitoring. The officers of the Company shall be responsible for reviewing the Code with all of the Companys managers. In turn, the Companys managers with supervisory responsibilities should review the Code with his/her direct reports. The manager is the go to person for employee questions and concerns, especially in the event of a potential violation. The manager will immediately report any known violations or allegations to the Compliance Officer. The managers will work with the Compliance Officer in assessing areas of concern, potential problems and overall compliance with the Code and other related policies. |
| | Auditing. An internal audit team selected by the Audit Committee will be responsible for auditing the Companys compliance with the Code. |
| | Internal Investigation. When an alleged violation of the Code is reported, the Company shall take prompt and appropriate action in accordance with the law and good business practice. If the suspected violation appears to involve either a potentially criminal act or an issue of significant corporate interest, then the manager or investigator should immediately notify his or her Vice President (or other senior person) and any other relevant corporate officer, who, in turn, shall notify the CEO/Chairman or Audit Committee, as applicable. If a suspected violation involves any executive officer or any Senior Financial Officer as defined in the Code for Senior Financial Officers, or if the suspected violation concerns any fraud, whether or not material, involving management or other employees who have a significant role in the Companys internal controls, then the manager or investigator should immediately report the alleged violation to the CEO and/or the Chairman of the Audit Committee. The CEO or Chairman of the Audit Committee, as applicable, shall assess the situation and determine the appropriate course of investigation. Investigations shall be documented, as appropriate. |
| | Disciplinary Actions. A manager, after consultation with the appropriate officer, shall be responsible for implementing the appropriate disciplinary action in accordance with the Companys policies and procedures for any employee who is found to have violated the Code. In addition to imposing discipline upon persons involved in non-compliant conduct, the Company also shall impose discipline, as appropriate, upon individuals who fail to detect non-compliant conduct and upon individuals who fail to report known non-compliant conduct. If a violation has been reported to the Audit Committee or another committee of the Board, that committee shall be responsible for determining appropriate disciplinary action. Such disciplinary action may include the termination of the employees employment. Disciplinary action shall be documented, as appropriate. |
| | Required Government Reporting. Whenever conduct occurs that requires a report to the government, the Finance Department shall be responsible for complying with such reporting requirements. |
8
| | Corrective Actions. In the event of a breach of the Code, the manager and Compliance Officer should assess the situation to determine whether the breach is a problem that can be resolved by corrective action. If a violation has been reported to the Audit Committee or another committee of the Board, that committee shall be responsible for determining appropriate corrective actions. Such corrective action may include retraining Company employees, adjusting Company policies and procedures, and other action necessary to prevent similar non-compliant conduct from occurring in the future. Such corrective action shall be documented, as appropriate. |
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FLO CORPORATION
CODE OF ETHICS FOR SENIOR FINANCIAL OFFICERS
| 1. | Application |
The Code of Ethics for Senior Financial Officers applies to the senior financial officers of FLO Corporation (the Company), including the principal financial officer or CFO, and the comptroller or principal accounting officer or persons performing similar functions (each, a Senior Financial Officer).
| 2. | Code of Business Conduct and Ethics Applies to Senior Financial Officers |
All Senior Financial Officers must comply with the Code of Business Conduct and Ethics which requires honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships.
| 3. | Compliance with Governmental Rules and Regulations and Financial Reporting Requirements |
Each Senior Financial Officer shall comply with all applicable governmental rules and regulations, including the rules relating to financial reporting. Senior Financial Officers shall provide for full, fair, accurate, timely and understandable disclosures in all financial reporting by the Company.
Because of the special responsibility of the Senior Officers in promoting integrity throughout the Company, the Senior Officers are bound by the following Senior Officer Code of Ethics, and by accepting the Code of Business Conduct and Ethics each agrees that he or she will:
| | Perform his or her duties in an honest and ethical manner. |
| | Handle all actual or apparent conflicts of interest between his or her personal and professional relationships in an ethical manner. |
| | Take all necessary actions to ensure full, fair, accurate, timely, and understandable disclosure in reports and documents that the Company files with, or submits to, government agencies and in other public communications. |
| | Comply with all applicable laws, rules and regulations of federal, state and local governments. |
| | Proactively promote and be an example of ethical behavior in the work environment |
| 4. | Publication of the Code of Ethics for Senior Financial Officers |
The Companys Code of Ethics for Senior Financial Officers will be posted and maintained on the Companys website.
| 5. | Changes or Waivers in the Code of Ethics for Senior Financial Officers |
Any change or waiver in the Code of Ethics for Senior Financial Officers shall require approval of the Audit Committee and be disclosed, as required by law and applicable rules and regulations.
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Glenn L. Argenbright, certify that:
| 1. | I have reviewed this amendment to annual report on Form 10-K/A of FLO Corporation; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: |
| (a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
| 5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors: |
| (a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
| (b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: April 29, 2008
| By: | /s/ GLENN L. ARGENBRIGHT | |
| Glenn L. Argenbright | ||
| Chief Executive Officer |
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Glenn L. Argenbright, certify that:
| 1. | I have reviewed this amendment to annual report on Form 10-K/A of FLO Corporation; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: |
| (a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
| 5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors: |
| (a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
| (b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: April 29, 2008
| By: | /s/ GLENN L. ARGENBRIGHT | |
| Glenn L. Argenbright | ||
| Principal Financial Officer |