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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
FORM 10-Q/A
(Amendment No. 2)
(Mark One)
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR THE QUARTERLY PERIOD ENDED June 30, 2009
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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 0-25033
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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63-1201350 |
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(State or Other Jurisdiction of Incorporation)
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(IRS Employer Identification No.) |
17 North 20th Street, Birmingham, Alabama 35203
(Address of Principal Executive Offices)
(205) 327-1400
(Registrants Telephone Number, Including Area Code)
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 þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files).
Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act).
Yes o No þ
Indicate the number of shares outstanding of each of the issuers classes of common stock, as of
the latest practicable date.
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Class
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Outstanding as of June 30, 2009 |
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Common stock, $.001 par value
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10,111,684 |
Explanatory Note
This Amendment No. 2 on Form 10-Q/A to Quarterly Report on Form 10-Q for the quarter ended June 30,
2009 (Amendment No. 2) is being filed to amend the disclosure under Item 4, Controls and
Procedures, of Part I of the Quarterly Report on Form 10-Q/A Amendment No. 1 of Superior Bancorp
for the quarter ended June 30, 2009 (Amendment No. 1), which was originally filed with the
Securities and Exchange Commission (the SEC) on November 9, 2009. We have modified Part I Item
4, Controls and Procedures, in this Amendment No. 2 in response to a comment contained in a
letter received from the SEC regarding managements conclusion that our internal control over
financial reporting was effective as of June 30, 2009. The only modification that has been made to
Item 4 is the addition of the following:
As described in the Explanatory Note and Note 1 to the condensed consolidated financial
statements we have restated our unaudited condensed consolidated financial statements as of, and
for the quarter ended June 30, 2009. In addition, we are currently filing an Amendment No. 1 on
Form 10-Q/A to amend and restate our unaudited condensed consolidated financial statements as
of, and for the quarter ended March 31, 2009. As such, our certifying officers, despite the
restatement, have concluded that our disclosure controls and procedures related to the fair
value measurements and other-than-temporary impairment (OTTI) of our pooled and single-issue
trust preferred securities were effective for the reporting periods ended March 31 and June 30,
2009. Our certifying officers based their conclusion on the following:
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established formal procedures, applied on a consistent basis, for the measurement of
fair values and the determination of any potential OTTI were in place; |
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these formal procedures were performed by competent and experienced personnel, and
reviews were conducted at the appropriate levels regarding key assumptions and
methodologies, and finally; |
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established formal procedures for the recording and disclosure of these fair value
measurements and OTTI existed and were conducted by competent and experienced personnel. |
Considering the extraordinary economic environment and market conditions that existed at March
31 and June 30, 2009 we believe the disclosure controls and procedures in place were designed
and operating in a manner which provided reasonable assurance that we had valued these
securities appropriately and identified any OTTI. At the time, management considered all
available information given the conditions of the market and the complexity of the pooled
instruments. In addition, the single-issue instruments were issued by privately-held
institutions and certain information about those instruments was not available.
Except as described in this Explanatory Note and as contained in this Amendment No. 2, we have not
modified or updated any other disclosures presented in Amendment No. 1. This Amendment No. 2 does
not reflect events occurring after the filing of the Quarterly Report on Form 10-Q for the quarter
ended June 30, 2009 (the Form 10-Q), originally filed with the SEC on August 10, 2009, or modify
or update those disclosures, including the exhibits to the Form 10-Q. Accordingly, this Amendment
No. 2 should be read in conjunction with our Amendment No. 1 and filings with the SEC subsequent to
the filing of the Form 10-Q.
In addition, we are currently filing an Amendment No. 2 on Form 10-Q/A to amend the disclosure
under Item 4 for the quarter ended March 31, 2009.
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TABLE OF CONTENTS
ITEM 4. CONTROLS AND PROCEDURES
CEO AND CFO CERTIFICATION
Appearing as exhibits to this report are Certifications of our Chief Executive Officer (CEO) and
our Chief Financial Officer (CFO). The Certifications are required to be made by Rule 13a-14
under the Securities Exchange Act of 1934, as amended. This Item contains the information about the
evaluation that is referred to in the Certifications, and the information set forth below in this
Item 4 should be read in conjunction with the Certifications for a more complete understanding of
the Certifications.
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
We maintain disclosure controls and procedures that are designed to ensure that information
required to be disclosed in our Exchange Act reports is recorded, processed, summarized and
reported within the time periods specified in the SECs rules and forms, and that such information
is accumulated and communicated to our management, including our CEO and CFO, as appropriate, to
allow timely decisions regarding required disclosure. In designing and evaluating the disclosure
controls and procedures, management recognized that any controls and procedures, no matter how well
designed and operated, can provide only reasonable assurance of achieving the desired control
objectives.
We conducted an evaluation (the Evaluation) of the effectiveness of the design and operation of
our disclosure controls and procedures under the supervision and with the participation of our
management, including our CEO and CFO, as of June 30, 2009. Based upon the Evaluation, our CEO and
CFO have concluded that, as of June 30, 2009, our disclosure controls and procedures are effective
to ensure that material information relating to Superior Bancorp and its subsidiaries is made known
to management, including the CEO and CFO, particularly during the period when our periodic reports
are being prepared.
There have not been any changes in our internal control over financial reporting (as defined in
Rule 13a-15(f) under the Securities and Exchange Act of 1934, as amended) during the fiscal quarter
to which this report relates that have materially affected, or are reasonably likely to materially
affect, our internal control over financial reporting.
As described in the Explanatory Note and Note 1 to the condensed consolidated financial statements
we have restated our unaudited condensed consolidated financial statements as of, and for the
quarter ended June 30, 2009. In addition, we are currently filing an Amendment No. 1 on Form 10-Q/A
to amend and restate our unaudited condensed consolidated financial statements as of, and for the
quarter ended March 31, 2009. As such, our certifying officers, despite the restatement, have
concluded that our disclosure controls and procedures related to the fair value measurements and
other-than-temporary impairment (OTTI) of our pooled and single-issue trust preferred securities
were effective for the reporting periods ended March 31 and June 30, 2009. Our certifying officers
based their conclusion on the following:
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established formal procedures, applied on a consistent basis, for the measurement of
fair values and the determination of any potential OTTI were in place; |
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these formal procedures were performed by competent and experienced personnel, and
reviews were conducted at the appropriate levels regarding key assumptions and
methodologies, and finally; |
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established formal procedures for the recording and disclosure of these fair value
measurements and OTTI existed and were conducted by competent and experienced personnel. |
Considering the extraordinary economic environment and market conditions that existed at March 31
and June 30, 2009 we believe the disclosure controls and procedures in place were designed and
operating in a manner which provided reasonable assurance that we had valued these securities
appropriately and identified any OTTI. At the time, management considered all available information
given the conditions of the market and the complexity of the pooled instruments. In addition, the
single-issue instruments were issued by privately-held institutions and certain information about
those instruments was not available.
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ITEM 6. EXHIBITS
(a) Exhibit:
31.1 |
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Certification of principal executive officer pursuant to Rule 13a-14(a). |
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31.2 |
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Certification of principal financial officer pursuant to 13a-14(a). |
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32.1 |
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Certification of principal executive officer pursuant to 18 U.S.C. Section 1350. |
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32.2 |
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Certification of principal financial officer pursuant to 18 U.S.C. Section 1350. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized.
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Date: December 11, 2009 |
By: |
/s/ C. Stanley Bailey
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C. Stanley Bailey |
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Chief Executive Officer |
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Date: December 11, 2009 |
By: |
/s/ James A. White
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James A. White |
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Chief Financial Officer (Principal Financial Officer) |
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