UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
10-K/A
(Amendment
No. 1)
(Mark
One)
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the fiscal year ended December 31,
2008
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OR
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from:___________ to ___________
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Commission
file number: 000-51703
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FortuNet,
Inc.
(Exact
name of Registrant as specified in its charter)
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Nevada
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88-0252188
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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2950
South Highland Drive, Suite C
Las
Vegas, Nevada 89109
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(Address
of principal executive offices including Zip Code)
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Registrant’s
telephone number, including area code: (702)
796-9090
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Securities
registered pursuant to Section 12(b) of the Act: None
Securities
registered pursuant to Section 12(g) of the Act:
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Common
Stock, $0.001 par value
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(Title
of Class)
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Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act.
Yes
x
No
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
x
No
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.
x
Yes No
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not
be contained, to the best of registrant’s 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
x
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, or a non-accelerated filer. See definition of “accelerated
filer,” ” large accelerated filer” and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller
reporting company
x
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(
Do not
check if a smaller reporting company
)
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes
x
No
As of
June 30, 2008, the aggregate market value of the registrant’s common stock held
by non-affiliates was approximately $18,400,000 (based on a closing sale price
of $6.26 per share as reported by the Nasdaq Global Market on June 30, 2008).
Shares of common stock beneficially held by executive officers and directors and
by each person who beneficially owns 5% or more of the outstanding common stock
have been excluded since such persons may be deemed affiliates. This
determination of affiliate status is not necessarily a conclusive determination
for other purposes.
There
were 11,054,011 shares of the registrant’s common stock issued and outstanding
as of May 31, 2009.
DOCUMENTS
INCORPORATED BY REFERENCE
Portions
of the registrant’s definitive Proxy Statement for the Annual Meeting of
Stockholders held on May 6, 2009 are incorporated by reference in Part III of
this Form 10-K to the extent stated herein. Except as expressly incorporated by
reference, the registrant’s Proxy Statement shall not be deemed to be a part of
this Form 10-K.
EXPLANATORY
NOTE
This
Amendment No. 1 to the Annual Report on Form 10-K of FortuNet, Inc. (the
“Company”) for the year ended December 31, 2008, originally filed on March 12,
2009 (the “Original Filing”), is being filed to (1) amend and restate Item 9A in
its entirety, and (2) correct the signatories to the officer certifications that
accompanied the Original Filing. The amended and restated Item 9A is
set forth in this Amendment No. 1 to the Original Filing. The correct
signatories to the officer certifications are indicated on the officer
certifications filed as exhibits to this Amendment No. 1 to the Original
Filing.
This
Amendment No. 1 does not reflect events occurring after March 12, 2009 and does
not update or modify in any way the results of operations, financial position,
cash flows or other disclosures in the Original Filing.
As
required by Rule 12b-15 under the Securities and Exchange Act of 1934, as
amended, new certifications by the Company’s principal executive officer and
principal financial officer are filed as exhibits 31.1 and 32.1 to this
Amendment No. 1 to the Original Filing.
ITEM
9A. CONTROLS AND PROCEDURES
Evaluation
of Disclosure Controls and Procedures
We are
required to maintain disclosure controls and procedures that are designed to
provide reasonable assurance that information required to be disclosed in our
reports under the Securities Exchange Act is recorded, processed, summarized and
reported within the time period specified in the Securities and Exchange
Commission’s rules and forms and that such information is accumulated and
communicated to our management, including our Chief Executive Officer and Chief
Financial Officer, as appropriate, to allow timely decisions regarding required
disclosure. The offices of the Chief Executive Officer and of the Chief
Financial Officer were filled by separate persons during the fiscal year ended
December 31, 2008. As of January 5, 2009, our former Chief Financial
Officer resigned and our Chief Executive Officer assumed the additional duties
of acting Chief Financial Officer. The evaluations of our disclosure
controls and procedures and internal control over financial reporting as of
December 31, 2008 were performed without the participation of our former Chief
Financial Officer.
As
required by Rule 13a-15(b) promulgated under the Securities Exchange Act, our
management, with the participation of our Chief Executive Officer acting in his
capacities as Chief Executive Officer and acting Chief Financial Officer,
evaluated the design and operating effectiveness as of December 31, 2008 of our
disclosure controls and procedures, as defined in Rule 13a-15(e) promulgated
under the Securities Exchange Act. Based on this evaluation our Chief Executive
Officer acting in his capacities as Chief Executive Officer and acting Chief
Financial Officer concluded that, as of December 31, 2008, our disclosure
controls and procedures were not effective at the reasonable assurance level to
enable the Company to record, process, summarize and report information required
under the Securities and Exchange Commission’s rules in a timely fashion.. This
conclusion resulted from the lack of separation of duties within the accounting
department that is discussed below and the inadvertent omission from the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008
of management’s report on its assessment of internal control over financial
reporting. The Company is addressing the lack of separation of duties
within the accounting department by familiarizing its new corporate controller
with the Company’s various tax and accounting reports and work papers so that
she is capable of accepting responsibility for such duties as are necessary to
achieve the desired separation of duties within the accounting
department. The Company is addressing the inadvertent omission of
information required in its periodic filings by instituting an additional level
of review of such filings.
Management’s Report on Internal
Control Over Financial Reporting
Our
management is responsible for establishing and maintaining adequate internal
control over financial reporting, as defined in Rule 13a-15(f) promulgated under
the Securities Exchange Act. Internal control over financial reporting is a
process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of an issuer’s financial statements for
external purposes in accordance with accounting principles generally accepted in
the United States. Internal control over financial reporting includes
policies and procedures that:
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pertain
to the maintenance of records that, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of an issuer’s
assets;
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provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with United States
generally accepted accounting principals, and that an issuer’s receipts
and expenditures are being made only in accordance with authorizations of
its management and directors; and
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provide
reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of an issuer’s assets that
could have a material effect on the financial
statements.
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Because
of its inherent limitations, internal control over financial reporting may not
prevent or detect misstatements. Also, the application of any evaluation of
effectiveness to future periods is subject to the risk that controls may become
inadequate because of changes in conditions, or that compliance with the
policies or procedures may deteriorate.
As
required by Rule 13a-15(c) promulgated under the Securities Exchange Act, our
management, with the participation of our Chief Executive Officer acting in his
capacities as Chief Executive Officer and acting Chief Financial Officer,
evaluated the effectiveness of our internal control over financial reporting as
of December 31, 2008. Management’s assessment was based on criteria set forth by
the Committee of Sponsoring Organizations of the Treadway Commission in
Internal Control over Financial
Reporting —Guidance for Smaller Public Companies.
Our assessment
identified deficiencies that were determined to be significant
deficiencies.
A
significant deficiency is a control deficiency, or combination of control
deficiencies, that results in more than a remote likelihood that a material
misstatement of the annual or interim financial statements will not be prevented
or detected. Because of the significant deficiency described below, management
concluded that our internal control over financial reporting was not effective
as of December 31, 2008.
The
specific significant deficiency identified by management as of December 31, 2008
is described as follows:
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Lack of separation of duties
within the accounting department:
As of December 31, 2008, we
lacked a sufficient separation of duties within the accounting
department. We have hired a corporate controller in order to be
able to separate duties within the accounting department, but as of
December 31, 2008, our new corporate controller was not sufficiently
familiar with our various tax and accounting reports and work papers, and
thus was not capable of accepting responsibility for such duties as are
necessary to achieve the desired separation of duties within the
accounting department.
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The
Company is addressing this significant deficiency by familiarizing its new
corporate controller with the Company’s various tax and accounting reports and
work papers so that she is capable accepting responsibility for such duties as
are necessary to achieve the desired separation of duties within the accounting
department.
Notwithstanding
management’s assessment that our internal control over financial reporting was
ineffective as of December 31, 2008 and the significant deficiency described
above, we believe that the financial statements included in this Annual Report
on Form 10-K correctly present in all material respects our financial position,
results of operations and cash flows for the periods covered
therein.
This
Annual Report does not include an attestation report of our registered public
accounting firm regarding internal control over financial reporting.
Management’s report was not subject to attestation by our registered public
accounting firm pursuant to temporary rules of the Securities
Exchange Commission that permit the Company to provide only management’s report
in this Annual Report.
Changes in Internal Controls Over
Financial Reporting
There
have been no changes in our internal control over financial reporting that
occurred during the fiscal quarter ended December 31, 2008 that have materially
affected, or are reasonably likely to materially affect our internal controls
over financial reporting.
PART
IV
ITEM
15. EXHIBITS
AND FINANCIAL STATEMENT SCHEDULES
(b) Exhibits:
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Number
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Description
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31
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.1
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Certification
of Yuri Itkis, Chief Executive Officer and Chief Financial Officer of
FortuNet, Inc. dated June 12, 2009 in accordance with Rules 13a-14(a)
and 15d-14(a) of the Securities Exchange Act, as amended, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
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32
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.1
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Certification
of Yuri Itkis, Chief Executive Officer and Chief Financial Officer of
FortuNet, Inc. dated June 12, 2009 in accordance with 18 U.S.C. 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
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SIGNATURES
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.
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FortuNet,
Inc.
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By
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/s/
Yuri Itkis
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Yuri
Itkis, President, Chief Executive Officer and
Chief
Financial Officer
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(Principal
Executive Officer, Principal Financial
Officer
and Principal Accounting Officer)
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Dated: June
12, 2009
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Yuri Itkis, and Boris Itkis, and each of them, his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution fro him in his name, place and stead, in any and all capacities,
to sign any and all amendments to this Annual Report on Form 10-K, and to file
the same, with all exhibits thereto, and other documents in connection therewith
with the Securities and Exchange Commission, granting onto such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises as fully and to all intent and purposes as he might or
could do in person hereby ratifying and confirming all that such
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
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.
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Signature
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Title
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Date
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/s/
Yuri Itkis
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President,
Chief Executive Officer (Principal Executive Officer) and Chief Financial
Officer (Principal Financial Officer and Principal Accounting Officer) and
Director
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June
12, 2009
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Yuri
Itkis
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/s/
Boris Itkis
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Director
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June
12, 2009
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Boris
Itkis
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/s/
Merle Berman
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Director
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June
12, 2009
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Merle
Berman
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/s/
Harlan W. Goodson
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Director
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June
12, 2009
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Harlan
W. Goodson
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/s/
Darrel Johnson
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Director
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June
12, 2009
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Darrel
Johnson
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