UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 10-Q/A

AMENDMENT NO. 1

 

 

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2010

or

 

¨ 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 000-50755

 

 

OPTIMUMBANK HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Florida   55-0865043

(State or other jurisdiction of

incorporation or organization)

 

(IRS Employer

Identification No.)

2477 East Commercial Boulevard, Fort Lauderdale, FL 33308

(Address of principal executive offices)

954-776-2332

(Registrant’s telephone number, including area code)

N/A

(Former name, former address and former fiscal year, if changed since last report)

 

 

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 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 (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   ¨     No   ¨

*The registrant has not yet been phased into the interactive data requirements.

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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    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

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date:  819,411 shares of Common Stock, $.01 par value, issued and outstanding as of November 12, 2010

 

 

 

OPTIMUMBANK HOLDINGS, INC. AND SUBSIDIARY

EXPLANATORY NOTE:

OptimumBank Holdings, Inc. (the “Company”) is amending Item 6. Exhibits in its Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2010, which was originally filed with the Securities and Exchange Commission on November 15, 2010 (“Original 10-Q”), in order to include the Written Agreement by and between OptimumBank Holdings, Inc. and the Federal Reserve Bank of Atlanta dated June 22, 2010 as Exhibit 10.4. At the deadline for filing of the Original 10-Q, the Company inadvertently did not have the exhibit prepared in fileable format and disclosed that the exhibit would be filed by amendment. .

The Original 10-Q as amended hereby continues to speak as of May 15, 2010, the date of the Original 10-Q, and the disclosures included in the Original 10-Q have not been updated to speak as of any later date.

Pursuant to SEC Rule 12b-15, in connection with this filing, the Company is filing updated exhibits 31.1 and 32.1.

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.

 

 

OPTIMUMBANK HOLDINGS, INC.

  (Registrant)

Date: November 18, 2010   By:  

  /s/ Richard L. Browdy

      Richard L. Browdy
      President and Chief Financial Officer
      (Principal Executive Officer, Principal
      Financial Officer and Principal Accounting Officer)

OPTIMUMBANK HOLDINGS, INC. AND SUBSIDIARY

EXHIBIT INDEX

 

Exhibit No.

  

Description

10.4    Written Agreement by and between OptimumBank Holdings, Inc. and Federal Reserve Bank of Atlanta dated June 22, 2010
31.1    Certification of Principal Executive and Principal Financial Officer required by Rule 13a-14(a)/15d-14(a) under the Exchange Act
32.1    Certification of Principal Executive and Principal Financial Officer under §906 of the Sarbanes-Oxley Act of 2002

Exhibit 10.4

UNITED STATES OF AMERICA

BEFORE THE

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

WASHINGTON, D.C.

 

 

Written Agreement by and between

   
      Docket No. 10-133-WA/RB-HC

OPTIMUMBANK HOLDINGS, INC.

   

Fort Lauderdale, Florida

 

and

 

   

FEDERAL RESERVE BANK OF

   

ATLANTA

   

Atlanta, Georgia

 

   

WHEREAS, OptimumBank Holdings, Inc., Fort Lauderdale, Florida (“Holdings”), a registered bank holding company, owns and controls OptimumBank, Plantation, Florida, a state nonmember bank (“Bank”), and one nonbank subsidiary;

WHEREAS, it is the common goal of Holdings and the Federal Reserve Bank of Atlanta (the “Reserve Bank”) to maintain the financial soundness of Holdings so that Holdings may serve as a source of strength to the Bank;

WHEREAS, Holdings and the Reserve Bank have mutually agreed to enter into this Written Agreement (the “Agreement”); and

WHEREAS, on June 18, 2010, the board of directors of Holdings, at a duly constituted meeting, adopted a resolution authorizing and directing Sam Borek to enter into this Agreement on behalf of Holdings, and consenting to compliance with each and every provision of this Agreement by Holdings and its institution-affiliated parties, as defined in sections 3(u) and 8(b)(3) of the Federal Deposit Insurance Act, as amended (the “FDI Act”) (12 U.S.C. §§1813(u) and 1818(b)(3)).

NOW, THEREFORE, Holdings and the Reserve Bank agree as follows:

Source of Strength

1. The board of directors of Holdings shall take appropriate steps to fully utilize Holdings’s financial and managerial resources, pursuant to section 225.4 (a) of Regulation Y of the Board of Governors of the Federal Reserve System (the “Board of Governors”) (12 C.F.R. § 225.4(a)), to serve as a source of strength to the Bank, including, but not limited to, taking steps to ensure that the Bank complies with the Consent Order entered into the Federal Deposit Insurance Corporation (“FDIC”) and the Florida Office of Financial Regulation on April 16, 2010 and any other supervisory action taken by the Bank’s federal or state regulator.

Dividends and Distributions

2. (a) Holdings shall not declare or pay any dividends without the prior written approval of the Reserve Bank and the Director of the Division of Banking Supervision and Regulation (the “Director”) of the Board of Governors.

(b) Holdings shall not directly or indirectly take dividends or any other form of payment representing a reduction in capital from the Bank without the prior written approval of the Reserve Bank.

(c) Holdings and its nonbank subsidiary shall not make any distributions of interest, principal, or other sums on subordinated debentures or trust preferred securities without the prior written approval of the Reserve Bank and the Director.

(d) All requests for prior approval shall be received by the Reserve Bank at least 30 days prior to the proposed dividend declaration date, proposed distribution on subordinated debentures, and required notice of deferral on trust preferred securities. All requests shall contain, at a minimum, current and projected information on Holdings’s capital, earnings, and cash flow; the Bank’s capital, asset quality, earnings, and allowance for loan and lease losses; and identification of the sources of funds for the proposed payment or distribution. For requests to declare or pay dividends, Holdings must also demonstrate that the requested declaration or payment of dividends is consistent with the Board of Governors’ Policy Statement on the Payment of Cash Dividends by State Member Banks and Bank Holding Companies, dated November 14, 1985 (Federal Reserve Regulatory Service, 4-877 at page 4-323).

Debt and Stock Redemption

3. (a) Holdings and its nonbank subsidiary shall not, directly or indirectly, incur, increase, or guarantee any debt without the prior written approval of the Reserve Bank. All requests for prior written approval shall contain, but not be limited to, a statement regarding the purpose of the debt, the terms of the debt, and the planned source(s) for debt repayment, and an analysis of the cash flow resources available to meet such debt repayment.

(b) Holdings shall not, directly or indirectly, purchase or redeem any shares of its stock without the prior written approval of the Reserve Bank.

Compliance with Laws and Regulations

4. (a) In appointing any new director or senior executive officer, or changing the responsibilities of any senior executive officer so that the officer would assume a different senior executive officer position, Holdings shall comply with the notice provisions of section 32 of the FDI Act (12 U.S.C. §1831(i) and Subpart H of Regulation Y of the Board of Governors (12 C.F.R. §§ 225.71 et seq .).

(b) Holdings shall comply with the restrictions on indemnification and severance payments of section 18)(k) of the FDI Act (12 U.S.C. §1828(k)) and Part 359 of the FDIC’s regulations (12 C.F.R. Part 359).

Progress Reports

5. Within 30 days after the end of each calendar quarter following the date of this Agreement, the board of directors shall submit to the Reserve Bank written progress reports detailing the form and manner of all actions taken to secure compliance with the provisions of this Agreement and the results thereof, and a parent company only balance sheet, income statement, and, as applicable, report of changes in stockholders’ equity.

Communications

6. All communications regarding this Agreement shall be sent to:

 

  (a) Mr. Steve Wise

Vice President

Federal Reserve Bank of Atlanta

1000 Peachtree Street

Atlanta, Georgia 30309

  (b) Mr. Sam Borek

OptimumBank Holdings, Inc.

Chairman and Acting CEO

2477 East Commercial Boulevard

Fort Lauderdale, Florida 33308

7. Notwithstanding any provision of this Agreement, the Reserve Bank may, in its sole discretion, grant written extensions of time to Holdings to comply with any provision of this Agreement.

8. The provisions of this Agreement shall be binding upon Holdings and its institution-affiliated parties, in their capacities as such, and their successors and assigns.

13. Each provision of this Agreement shall remain effective and enforceable until stayed, modified, terminated, or suspended in writing by the Reserve Bank.

14. The provisions of this Agreement shall not bar, stop, or otherwise prevent the Board of Governors, the Reserve Bank, or any other federal or state agency from taking any other action affecting Holdings, the Bank, the nonbank subsidiary of Holdings, or any of their current or former institution-affiliated parties and their successors and assigns.

15. Pursuant to section 50 of the FDI Act (12 U.S.C. §1831aa) this Agreement is enforceable by the Board of Governors under section 8 of the FDI Act (12 U.S.C. § 1818).

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the 22 nd day of June, 2010.

 

OPTIMUMBANK HOLDINGS, INC.     FEDERAL RESERVE BANK OF ATLANTA
By:  

/s/ Sam Borek

    By:  

/s/ Steve Wise

 

    Sam Borek

     

    Steve Wise

 

    Chairman and Acting CEO

     

    Vice President

Exhibit 31.1

Certification of the Principal Executive and Principal Financial Officer

Required by Rule 13a-14(a)/15d-14(a) under the Securities Exchange Act of 1934

I, Richard L. Browdy, certify that:

 

1. I have reviewed this report on Form 10-Q/A of OptimumBank Holdings, Inc. (the “Company”);

 

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. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15e and 15d-15e) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15f and 15d-15f) for the Company and 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 subsidiary, is made known to us by others within that entity, 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 registrant’s 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 registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the Company’s auditors and the Audit Committee of the Company’s 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 registrant’s 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 registrant’s internal control over financial reporting.

 

Date: November 18, 2010  

/s/ Richard L. Browdy

  Richard L. Browdy, President and Chief Financial Officer
  (Principal Executive and Principal Financial Officer)

Exhibit 32.1

CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER

PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADDED BY

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of OptimumBank Holdings, Inc. (the “Company”) on Form 10-Q/A for the quarter September 30, 2010, as filed with the Securities and Exchange Commission (the “Report”), I, Richard L. Browdy, President and Chief Financial Officer (Principal Executive and Principal Financial Officer) of the Company, certify, pursuant to 19 U.S.C. § 1350, as added by § 906 of the Sarbanes-Oxley Act of 2002, that:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2. To my knowledge, the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of and for the period covered by the Report.

 

Date: November 18, 2010  

/s/ Richard L. Browdy

  Richard L. Browdy, President and Chief Financial Officer
  (Principal Executive and Principal Financial Officer)