A significant amount of our leased physical
facilities are owned by an affiliate of Mr. Amerson, which have been financed
with a third party financial institution, which has a pledge of our shares
owned by Mr. Amerson as security for this and other personal obligations of Mr.
Amerson.
We are the
lessee under a series of six (6) real estate operating leases for approximately
1,016,000 square feet of warehousing, shipping and manufacturing facilities,
expiring between 2025 to 2028 with Wal-Pat II, LLC (“Wal-Pat”), an entity
owned by Robert R. Amerson. Mr. Amerson is our CEO and Chairman of our Board of
Directors and beneficially owns approximately 27.5% of our outstanding common
shares as of September 30, 2008.
Our current aggregate
monthly base lease payment obligation to Wal-Pat is approximately $233. Our
total remaining aggregate obligation under the Wal-Pat operating leases is
approximately $45,224. These amounts exclude any obligations for payment of
real estate taxes and repairs and maintenance, which are our responsibility as
the lessee.
In September
2007, we entered into a Master Lease Modification Agreement with Wal-Pat, which
requires Wal-Pat to notify us at least thirty (30) days in advance of any
future proposed sale of any of the premises or a proposed sale of a majority of
the equity interests in Wal-Pat. In such event, we have the right to accept,
renegotiate or terminate the leases. We were granted a future right of first
refusal in connection with a sale of any of the leased Wal-Pat facilities. In
the event of a future sale of Flanders, which includes a merger, sale of
substantially all of our assets or acquisition of greater than 50% of our
shares, by a party other than Mr. Amerson, then Flanders is granted the right
to terminate or renegotiate the terms of the Wal-Pat leases. We also have a
fair market value purchase option for the facilities we lease from Wal-Pat.
Mr. Smith, the current Chief Operating Officer, has pledged
755,183 shares of our common stock to BB&T to secure a personal loan to
acquire these shares from Mr. Clark in October 2007. Mr. Smith may be required to sell or otherwise dispose of these shares from time to time in order to meet his debt service obligations to BB&T.
A default by
us under the terms of any of these leases or a default by Wal-Pat, or Mr.
Amerson, as guarantor on their obligations to Branch Banking &Trust Company
(“BB&T”), the financial institution which holds mortgages and deeds of
trust on these properties, could adversely affect our leasehold interests in
these properties. Mr. Amerson has pledged 5,118,103 shares of our common shares
as collateral to BB&T in order to secure the financings to Wal-Pat and
other personal loans. If BB&T forecloses upon our shares pledged to
BB&T as collateral by Mr. Amerson, then BB&T would be considered a
selling stockholder under this Prospectus. We are filing this registration
statement and registering the pledged shares of Mr. Amerson at the request of
BB&T. As of the date of this Prospectus, there are no events of default
under the financing documents between Wal-Pt, Mr. Amerson and BB&T.
Because of the
foregoing factors, as well as other variables affecting our operating results,
past financial performance should not be considered a reliable indicator of
future performance, and investors should not use historical trends to
anticipate results or trends in future periods.
USE OF
PROCEEDS
The
selling stockholder will receive all of the net proceeds from the sale of the
common stock offered by this prospectus. Accordingly, we will not receive any
proceeds from the sale of the common stock.
All
costs, expenses and fees in connection with the registration of the shares of
common stock offered hereby will be borne by us. Brokerage commissions and
similar selling expenses, if any, attributable to the sale of shares of common
stock offered hereby will be borne by the selling stockholders.
DESCRIPTION OF
STOCK
The following description is a summary of the
rights and preferences of our common stock and preferred stock and related
provisions of our certificate of incorporation and bylaws. Certain provisions
in our certificate of incorporation and bylaws may have the effect of delaying,
deferring or preventing a takeover of our company (including transactions in
which stockholders might otherwise receive a premium for their shares over the
then current prices) unless the takeover or change in control is approved by
our Board of Directors. In addition, because Mr. Amerson and Mr. Smith own a
significant amount of our common stock, they control a significant stake in our
company making it more difficult or impossible for
10
stockholders to vote to change the
composition of the Board of Directors or effect a takeover or a change in
control of Flanders without the approval of Mr. Amerson and Mr. Smith.
General
Our authorized
capital stock consists of 50 million shares of common stock, $0.001 par
value per share, and 10 million shares of preferred stock, $0.001 par
value per share. As of September 30, 2008, 25,724,074 shares of our common
stock are outstanding. No shares of our preferred stock are outstanding.
Common Stock
The holders of
our common stock are entitled to one vote per share on any matter submitted to
a vote of the stockholders. Subject to preferences that may be applicable to
any outstanding shares of preferred stock, holders of common stock are entitled
to receive, when, if any, as declared by our Board of Directors, out of assets
legally available therefor, such dividends or distributions as may be declared
from time to time by our Board of Directors. Subject to preferences that may be
applicable to any outstanding shares of preferred stock, in the event of our
liquidation, dissolution or winding up, whether voluntary or involuntary, the
funds and assets that may be legally distributed to the stockholders shall be
distributed among the holders of the then outstanding common stock pro rata
according to the number of shares of common stock held by each holder thereof.
Holders of common stock have no preemptive, conversion, subscription or other
rights. There are no redemption or sinking fund provisions applicable to the
common stock. All outstanding shares of common stock are validly issued, fully
paid and nonassessable.
Preferred Stock
Our Board of
Directors has the authority, without further action by our stockholders, to
issue up to 10 million shares of preferred stock in one or more series. In
addition, our Board of Directors may fix the rights, preferences and privileges
of any series of preferred stock it may determine to issue. These rights may
include a preferential return in the event of our liquidation, the right to
receive dividends if declared by the Board of Directors, special dividend
rates, conversion rights, redemption rights, superior voting rights to the
common stock, the right to protection from dilutive issuances of securities, or
the right to approve corporate actions. Any or all of these rights may be
superior to the rights of the common stock. As a result, preferred stock could
be issued with terms that could delay or prevent a change in control or to make
removal of our management more difficult. Additionally, our issuance of
preferred stock may decrease the market price of our common stock.
Anti-Takeover Provisions
North Carolina Law
We
are subject to the Control Shares Acquisition Act of the State of North
Carolina. This act provides that any person who acquires “control shares” of a
publicly held North Carolina corporation will not have voting rights with
respect to the acquired shares in certain circumstances. The North Carolina
Shareholder Protection Act requires the affirmative vote of 95% of our voting
shares to approve a business combination with any entity that beneficially owns
20% of the outstanding voting shares of the corporation unless the “fair price”
provisions of the Act are satisfied. These provisions could deprive
shareholders of opportunities to realize takeover premiums for their shares or
other advantages that large accumulations of stock would typically provide.
Certificate and
Bylaw Provisions
Our Board of Directors.
Our
bylaws provide that the authorized number of our directors may be changed only
by a resolution of the Board of Directors. Except as provided by our Board of
Directors in setting the terms of any series of preferred stock, any vacancy
may be filled by a majority of the directors then in office, even if the
remaining directors do not constitute a quorum, or by a sole remaining
director. Any director elected to fill a vacancy will serve until the next
annual meeting and until his or her successor is elected and qualified.
Our directors
serve for a term of one year and until their successors are elected and
qualified. Holders of shares of our voting stock will have no right to
cumulative voting in the election of directors.
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Consequently,
at each annual meeting of stockholders at which directors are elected, the
holders of a majority of the shares of our voting stock will be able to elect
all of the successors of the directors being elected at that meeting.
Ability to Act by Written
Consent or to Convene a
Special Meeting.
Our certificate of
incorporation provides that stockholders may only act by written consent signed
by stockholders holding the minimum number of votes to take such an action at a
shareholders meeting. Our certificate of incorporation and bylaws provide that,
except as otherwise required by law, special meetings of the stockholders can
only be called by the Chairman of the Board of Directors or our President,
pursuant to a resolution adopted by a majority of the Board of Directors or by
stockholders holding in excess of 10% of our common stock.
Amendment to Our Certificate of
Incorporation and
Bylaws.
The North Carolina General
Corporation Law provides generally that the affirmative vote of a majority of
the stock entitled to vote on any matter is required to amend a corporation’s
certificate of incorporation or bylaws, unless either a corporation’s
certificate of incorporation or bylaws requires a greater percentage. Neither our
certificate of incorporation nor our bylaws require a higher percentage.
Indemnification of Directors
and Officers
.
The North Carolina Business Corporation
Act (the “NC Act”) permits a North Carolina corporation to indemnify a present
or former director or officer of the corporation (and certain other persons
serving at the request of the corporation in related capacities) for
liabilities, including legal expenses, arising by reason of service in such
capacity if such person shall have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and in any criminal proceeding if such person had no reasonable
cause to believe his conduct was unlawful. However, in the case of actions
brought by or in the right of the corporation, no indemnification may be made
with respect to any matter as to which such director or officer shall have been
adjudged liable, except in certain limited circumstances. The indemnification
provided by the NC Act is not exclusive of any other rights to which a director
or officer may be entitled. The general effect of the foregoing provisions may
be to reduce the circumstances which an officer or director may be required to
bear the economic burden of the foregoing liabilities and expense. The Company
may also purchase and maintain insurance for the benefit of any director or
officer that may cover claims for which we could not indemnify such person.
Our
Bylaws provide that we will indemnify any person as an officer or director or
as an officer, director, trustee or partner of another corporation, trust,
partnership or employee benefit plan at the request of the Company, against any
liability incurred in connection with any proceeding arising out of the
service. To the extent that such person is successful on the merits or
otherwise in defense of any such proceeding, we will indemnify that person
against expenses actually and reasonably incurred in such defense. No
indemnification is available if, at the time of the activities that are the
subject of the proceeding, the person knew or believed that the activities were
clearly in conflict with the best interests of Flanders. Further, Section
55-8-51 of the North Carolina Business Corporation Act provides that a
corporation may not indemnify a director in connection with a proceeding by or
in the right of the corporation in which the director was adjudged liable to
the corporation or in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in which he is adjudged liable on the basis that personal benefit was
improperly received by him.
The
Company maintains an insurance policy for the benefit of directors and officers
insuring them against claims that are made against them by reason of any
wrongful act (as defined) committed in their capacity as directors or officers.
We have also entered into separate indemnity agreements with our executive
officers and directors.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to our directors, officers and controlling person based on the
foregoing provisions, we have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy and is, therefore, unenforceable.
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Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is OTC Stock Transfer.
Listing
Our
common stock is on The Nasdaq Global Select Market™ under the symbol “FLDR.”
DETERMINATION
OF OFFERING PRICE
The
selling stockholder will determine at what price they may sell the offered
shares, and such sales may be made at prevailing market prices, or at privately
negotiated prices.
SELLING
STOCKHOLDERS
The
following table and accompanying notes set forth certain information regarding
the selling stockholders as of September 30, 2008 unless otherwise indicated.
Under this prospectus, the selling stockholders and any of their respective
transferees, assignees, donees, distributees, pledgees or other successors in
interest may offer and sell from time to time an aggregate of 5,118,103 shares
of common stock. In this prospectus, we refer to the holder of our shares
collectively as the selling stockholders. The shares are being registered to
permit public sales of the shares, and the selling stockholders may offer the
shares for resale from time to time. See “Plan of Distribution.”
The
selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of the sale or sales of common stock
covered by this prospectus. We cannot estimate the number of shares the selling
stockholders will hold after the completion of the offering by the selling
stockholder because they may sell all or a portion of the shares offered by
this prospectus. We have assumed for the purposes of this table that none of
the shares offered by this prospectus will be held by the selling stockholders
after the completion of this offering. Our registration of shares of common
stock held by the selling stockholders does not necessarily mean that the
selling stockholders will sell all or any of the shares. Except as otherwise
indicated, each person listed in the table has informed us that such person has
(1) voting and investment power with respect to such person’s shares of common
stock and (2) record and beneficial ownership with respect to such person’s
shares of common stock.
Information
about the current selling stockholders is set forth herein. Information about
additional selling stockholders may be set forth in a prospectus supplement, in
a post-effective amendment, or in filings that we make with the SEC under the Exchange
Act, which are incorporated by reference in this prospectus. There are
currently no agreements, arrangements or understandings with respect to the
sale of any of the resale shares held by the selling stockholders. None of the
selling stockholders are underwriters, broker dealers, or affiliates of
underwriters or broker dealers.
Mr.
Amerson is deemed to be an affiliate of our Company. He is our Chief Executive
Officer and Chairman of our Board of Directors. Mr. Amerson has pledged
5,118,103 shares of our common stock to BB&T. Under certain conditions
pursuant to loan and other financing documents, BB&T may take ownership of
our pledged shares. For more detailed discussion involving Mr. Amerson’s
relationship and transactions involving us, see “Risk Factors – A Significant
Amount of our Leased Physical Facilities are Owned by Mr. Amerson” in this
Prospectus, and information regarding Mr. Amerson contained in Part III of our
2007 Annual Report on Form 10-K, which is incorporated herein by reference.
13
If
all of the shares are sold pursuant to this prospectus, then the selling
stockholders will sell 5,118,103 shares of our common stock.
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Shares Beneficially
Owned
Prior To Offering (1)
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Number of Shares
Being Offered
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Shares Beneficially
Owned
After The Offering
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Name of
Beneficial Owner
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Number
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Percentage
(2)
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Number
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Percentage
(2)
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Number
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Percentage
(2)
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Robert R.
Amerson
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7,612,103
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27.5%
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5,118,103
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18.5%
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2,494,000
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9%
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(1)
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Pursuant to Rule 13d-3 of
the Exchange Act, a person is deemed to be a beneficial owner of a security
if that person has the right to acquire beneficial ownership of such security
within 60 days, including the right to acquire through the sale of all shares
offered by this prospectus and the exercise of an option or warrant or
through the conversion of a security.
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(2)
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Applicable percentage of
ownership is based on approximately 25,724,074 shares of common stock
outstanding as of September 30, 2008, together with all applicable options
for unissued securities held by Mr. Amerson exercisable within 60 days.
Shares of common stock subject to options exercisable within 60 days are
deemed outstanding for computing the percentage ownership of the person
holding such options, but are not deemed outstanding for computing the
percentage of any other person.
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(3)
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Mr. Amerson’s beneficial
ownership consists of the following: (i) 5,612,103 shares of common stock, of
which 585,500 shares are held jointly with his wife, (ii) options to acquire
1,000,000 shares of common stock with an exercise price of $2.50, which
expire on December 22, 2009, and (iii) options to acquire 1,000,000 shares of
common stock with an exercise price of $7.50, which expires on March 7, 2011.
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PLAN OF
DISTRIBUTION
Flanders
Corporation has registered the shares offered by this prospectus on behalf of
the selling stockholders, and will not receive any proceeds from the sale of
the shares by the selling stockholders. Registration of the
shares covered by this prospectus does not mean, however, that those
shares necessarily will be offered or sold. These shares may be sold or
distributed from time to time by the selling stockholders and any of their
respective transferees, assignees, donees, distributees, pledgees or other
successors in interest, all of whom we collectively refer to in this prospectus
as “selling stockholders.” The selling stockholders may sell their shares at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices, or at fixed prices or in
competitively bid transactions, which may be changed. Each selling stockholder
reserves the right to accept or reject, in whole or in part, any proposed
purchase of shares, whether the purchase is to be made directly or through
agents.
The
selling stockholders may offer their shares at various times in one or more of
the following transactions:
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in ordinary
brokers’ transactions and transactions in which the broker solicits
purchasers;
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purchases by
a broker-dealer as principal and resale by the broker-dealer for its account
pursuant to this prospectus;
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in
transactions involving cross or block trades;
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in
transactions “at the market” to or through market makers in the common stock
or into an existing market for the common stock;
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in other
ways not involving market makers or established trading markets, including
direct sales of the shares to purchasers or sales of the shares effected
through agents;
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through
transactions in options, swaps or other derivatives which may or may not be
listed on an exchange;
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in privately
negotiated transactions;
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in
transactions to cover short sales;
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in underwritten
transactions;
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an over the
counter distribution in accordance with the rules of the NASDAQ Global Select
Market;
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sales and
other ways not involving market makers or established trading markets,
including privately negotiated direct sales to purchasers and privately
negotiated transactions;
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pledging the
shares to broker-dealer, bank, financial institution or other party, who may
sell the loan shares, or in the event of default, sell the pledged shares;
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any other
legal method; or
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in a
combination of any of the foregoing transactions.
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The
selling stockholders also may sell all or a portion of their shares in open
market transactions in accordance with Rule 144 under the Securities Act,
provided that they meet the criteria and conform to the requirements of that
rule.
Mr.
Amerson has pledged as collateral for various loans 5,118,103 of our shares
being registered for resale under this prospectus to BB&T. Under certain
conditions pursuant to the applicable BB&T loan and financing documents,
BB&T may take ownership of the pledged shares. If Mr. Amerson defaults in
the performance of his obligations to BB&T and BB&T exercises its
rights to foreclose upon our shares pledged as collateral to BB&T, which
are being registered hereunder for resale, then BB&T, or its assigns, will
be deemed to be the selling stockholder and may offer and sell the shares from
time to time by this prospectus. Information about additional selling
stockholders may be set forth in a prospectus supplement, in a post-effective
amendment, or in filings that we make with the SEC under the Exchange Act,
which are incorporated by reference in this Prospectus.
The
selling stockholders also may transfer and donate shares in other
circumstances. The number of shares beneficially owned by selling stockholders
will decrease as and when the selling stockholders transfer or donate their
shares or default in performing obligations secured by their shares. The plan
of distribution for the shares offered and sold under this prospectus will
otherwise remain unchanged, except that the transferees, donees, pledgees,
other secured parties or other successors in interest will be selling
stockholders for purposes of this prospectus.
A
selling stockholder may sell short the common stock. The selling stockholder
may deliver this prospectus in connection with such short sales and use the
shares offered by this prospectus to cover such short sales.
A
selling stockholder may enter into hedging transactions with broker-dealers.
The broker-dealers may engage in short sales of the common stock in the course
of hedging the positions they assume with the
15
selling
stockholder, including positions assumed in connection with distributions of
the shares by such broker-dealers. A selling stockholder also may enter into
option or other transactions with broker-dealers that involve the delivery of
shares to the broker-dealers, who may then resell or otherwise transfer such
shares. In addition, a selling stockholder may loan or pledge shares to a
broker-dealer, who may sell the loaned shares or, upon a default by the selling
stockholder of the secured obligation, may sell or otherwise transfer the
pledged shares.
The
selling stockholders may use brokers, dealers, underwriters or agents to sell
their shares. The persons acting as agents may receive compensation in the form
of commissions, discounts or concessions. This compensation may be paid by the
selling stockholders or the purchasers of the shares of whom such persons may
act as agent, or to whom they may sell as principal, or both. The compensation
as to a particular person may be less than or in excess of customary
commissions. The selling stockholders and any agents or broker-dealers that
participate with the selling stockholders in the offer and sale of the shares
may be deemed to be “underwriters” within the meaning of Section 2(11) of the
Securities Act. Any commissions they receive and any profit they realize on the
resale of the shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Neither we nor any selling stockholders
can presently estimate the amount of such compensation. Because selling
stockholders may be deemed to be “underwriters” within the meaning of
Section 2(11) of the Securities Act, the selling stockholders will be
subject to the prospectus delivery requirements of the Securities Act, which
may include delivery through the facilities of the NASDAQ Global Select Market
pursuant to Rule 153 under the Securities Act.
Upon
being notified by a selling stockholder that any material arrangement has been
entered into with a broker-dealer or underwriter for the sale of shares of
common stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, we will file a
supplement to this prospectus, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such selling stockholder
and of the participating broker-dealer(s) or underwriter(s), (ii) the
number of shares of common stock involved, (iii) the price at which such
shares were or will be sold, (iv) the commissions paid or to be paid or
discounts or concessions allowed to such broker-dealer(s) or underwriter(s),
where applicable, (v) that, as applicable, such broker-dealer(s) or
underwriter(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus and (iv) other facts
material to the transaction.
Flanders
Corporation has advised the selling stockholders that during such time as they
may be engaged in a distribution of the shares, they are required to comply
with Regulation M under the Exchange Act. With some exceptions, Regulation M
prohibits any selling stockholder, any affiliated purchasers and other persons
who participate in such a distribution from bidding for or purchasing, or
attempting to induce any person to bid for or purchase any security which is
the subject of the distribution until the entire distribution is complete.
The
selling stockholders may sell shares directly to purchasers. In this case, the
selling stockholders may not engage brokers, dealers, underwriters or agents in
the offer and sale of such shares.
There
can be no assurance that the selling stockholders will sell any or all of the
shares of common stock registered pursuant to the registration statement, of
which this prospectus or any accompanying prospectus supplement forms a part.
It
is possible that a significant number of shares could be sold at the same time.
Such sales, or the perception that such sales could occur, may adversely affect
prevailing market prices for our common stock.
In
order to comply with the securities laws of some states, if applicable, the
shares must be sold in such jurisdictions only through registered licensed
brokers or dealers. In addition, some states may restrict the selling
shareholders from selling their shares unless they have been registered or
qualified for sale on the applicable state of an exemption from registration or
qualification requirement is available and is complied with.
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To
the extent required, this Prospectus may be amended or supplemented from
time-to-time to describe a specific plan of distribution.
Once
sold under the shelf registration statement for which this Prospectus is a
part, the shares of common stock will be freely tradable in the hands of
persons other than our affiliates.
This
offering by any selling stockholder will terminate on the date on which the
selling stockholder has sold all of such selling stockholder’s shares.
LEGAL MATTERS
The
validity of the common stock will be passed upon for us by Johnson, Pope,
Bokor, Ruppel & Burns LLP.
EXPERTS
The
consolidated financial statements appearing in our Annual Report (Form 10-K)
for the year ended December 21, 2007 have been audited by Pender Newkirk &
Co., LLP, independent auditors, as set forth in their report thereon, included
therein, and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given on the authority of such firm as experts in accounting and auditing.
INCORPORATION
OF INFORMATION FILED WITH THE SEC
The
SEC allows us to “incorporate by reference” information filed with the SEC.
This means that we can disclose important information to you, without actually
including the specific information in this prospectus, by referring you to
those documents. The following documents which we have previously filed with
the SEC pursuant to the Exchange Act are incorporated into this prospectus by
reference; provided, however, that we are not incorporating any information
furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K:
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our Annual
Report on Form 10-K for the year ended December 31, 2007 (filed March 14,
2008);
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008 and June
30, 2008 (filed May 2, 2008 and August 1, 2008, respectively);
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our Current
Reports on Form 8-K and Form 8-K/A filed with the SEC on July 30, 2008, June
20, 2008, April 30, 2008, and March 14, 2008;
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All
documents we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this prospectus and before all of the common stock
offered by this prospectus is sold are incorporated by reference in this
prospectus from the date of filing of the documents. Information that we file
with the SEC will automatically update and may replace information in this
prospectus and information previously filed with the SEC.
WHERE YOU CAN
FIND MORE INFORMATION
We
have filed a registration statement on Form S-3 with the SEC to register the
shares as required by the federal securities laws. This prospectus, which
constitutes a part of that registration statement on Form S-3, omits certain
information concerning us and our common stock contained in the registration
statement. Furthermore, statements contained in this prospectus concerning any
document filed as an exhibit are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the registration statement. Accordingly, you should reference the registration
statement and its exhibits for further information with respect to us and the
shares offered under this prospectus.
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We
also file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934, as amended.
Our Exchange Act file number for our SEC filings is 0-27958. You may read and
copy any document we file with the SEC at the following SEC public reference
room:
Public Reference Room
100 F St. N.E.
Washington, D.C. 20549
You
may obtain information on the operation of the SEC’s Public Reference Room by
calling the SEC at 1-800-SEC-0330.
The
SEC also maintains an Internet web site that contains reports, proxy statements
and other information regarding issuers, including Flanders Corporation, who
file electronically with the SEC. The address of that site is
http://www.sec.gov.
To
receive a free copy of any of the documents incorporated by reference in this
prospectus, other than exhibits, unless they are specifically incorporated by
reference in those documents, call or write to Flanders Corporation, Attention:
Corporate Secretary, 2399 26
th
Avenue North, St. Petersburg, FL
33734 (telephone (727) 822-4411).
You
should rely only on the information or representations provided in this
prospectus and the registration statement. We have not authorized anyone to
provide you with different information. The information contained in this
document speaks only as of the date of this document unless the information
specifically indicates that another date applies.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution
The
estimated expenses to be paid in connection with the issuance and distribution
of the securities being registered, other than underwriting discounts and
commissions, will be paid entirely by the registrant and are as follows:
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SEC
registration fee
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$
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2,000
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Printing and
engraving expenses
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1,500
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Accounting
fees and expenses
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5,000
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Legal fees
and expenses
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15,000
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Miscellaneous
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1,000
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Total
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$
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24,500
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Item 15. Indemnification of Directors and
Officers
Flanders
Corporation is incorporated under the laws of the State of North Carolina.
North Carolina law gives a corporation power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments,
18
fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person’s conduct was
unlawful.
Under
North Carolina law, a corporation has the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. Further, to the extent that a present or
former director or officer of a corporation has been successful on the merits
or otherwise in defense of any such action, suit or proceeding, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
North
Carolina law also authorizes a corporation to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, arising out of his status as such,
whether or not the corporation would otherwise have the power to indemnify him.
We
have indemnification agreements with each of our executive officers and
directors.
All
of our directors and officers are covered by insurance policies against certain
liabilities for actions taken in their capacities as such, including
liabilities under the Securities Act of 1933.
Item 16. Exhibits
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Exhibit
No.
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Exhibit
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3.1
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-
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Articles of
Incorporation of Flanders Corporation incorporated by reference to
Registration Statement on Form 8-A, filed on March 8, 1996.
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3.2
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-
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Bylaws of
Flanders Corporation incorporated to Registration Statement on Form 8-A,
filed on March 8, 1996.
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5.1*
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-
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Form of
Opinion of Johnson, Pope, Bokor, Ruppel & Burns, LLP.
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23.1*
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-
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Consent of
Pender, Newkirk & Co, LLP, Independent Registered Public Accounting Firm.
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23.2*
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Form of
Consent of Johnson, Pope, Bokor, Ruppel & Burns, LLP (included in Exhibit
5.1).
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24.1*
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-
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Power of Attorney
(included in signature page).
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19
Item 17. Undertakings
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A.
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The
undersigned registrant hereby undertakes:
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(1)
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To file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
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(i)
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To include
any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect
in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
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(iii)
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To include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided
,
however
,
that paragraphs A(1)(i), A(1)(ii) and A(1)(iii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
a part of this registration statement.
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(2)
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That, for
the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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(3)
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To remove
from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
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(4)
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That, for
the purpose of determining liability under the Securities Act to any
purchaser:
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(A)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of this registration statement as of the date the filed prospectus
was deemed part of and included in this registration statement; and
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(B)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of this registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by section 10(a) of the Securities Act
shall be deemed to be part of and included in this registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of this registration
statement relating to the securities in this registration statement to which
that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus
that is part of this registration statement or made in a document
incorporated or deemed incorporated by reference into this registration
statement or
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prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in this registration
statement or prospectus that was part of this registration statement or made
in any such document immediately prior to such effective date; or
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(C)
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If the
registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of
first use.
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(5)
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That, for
the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such
securities to such purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion
of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
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B. The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant,
we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
21
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Washington, North Carolina, on the 29th day of October, 2008.
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FLANDERS CORPORATION
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By:
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/s/ Robert
R. Amerson
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Robert R.
Amerson,
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Chief
Executive Officer
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below
hereby severally constitutes and appoints, Harry Smith and Cully Bohush, and
each or any of them, his or her true and lawful attorney-in-fact and agent,
each with the power of substitution and resubstitution, for him or her in any
and all capacities, to sign any and all amendments to this registration
statement and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed below by the following persons on behalf of the registrant in
the capacities set forth below on the 29th day of October, 2008.
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Signature
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Title
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/s/Robert R. Amerson
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Chief
Executive Officer / (Principal
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Robert R. Amerson
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Executive
Officer) & Director
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/s/Cully Bohush
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Chief
Accounting Officer /
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Cully Bohush
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(Principal
Accounting Officer)
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/s/Harry L. Smith, Jr.
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Director/Chief Operating Officer
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Harry L. Smith, Jr.
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/s/Jeffrey Korn
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Director
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Jeffrey Korn
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/s/Kirk Dominick
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Director
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Kirk Dominick
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/s/David M. Mock
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Director
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David M. Mock
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22
LIST OF EXHIBITS
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3.1
|
-
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Articles of
Incorporation of Flanders Corporation incorporated by reference to
Registration Statement on Form 8-A, filed March 8, 1996.
|
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3.2
|
-
|
Bylaws of
Flanders Corporation incorporated by reference to Registration Statement on
Form 8-A, filed on March 8, 1996.
|
|
5.1*
|
-
|
Form of
Opinion of Johnson, Pope, Bokor, Ruppel & Burns, LLP.
|
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23.1*
|
-
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Consent of
Pender, Newkirk & Co., LLP, Independent Registered Public Accounting
Firm.
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23.2*
|
-
|
Form of
Consent of Johnson, Pope, Bokor, Ruppel & Burns, LLP (included in Exhibit
5.1).
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24.1*
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-
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Power of
Attorney (included in signature page).
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23
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