Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
Amendment No. 1
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
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Date
of Report
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(Date
of earliest
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event
reported):
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April 23,
2010
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(Exact
name of registrant as specified in its charter)
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Wisconsin
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000-50015
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04-3638672
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(State
or other
jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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1235 “N” Street, Lincoln, Nebraska 68508
(Address
of principal executive offices, including zip code)
(402) 475-0521
(Registrant’s
telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
The
purpose of this amendment, consistent with the disclosure in the initial Form
8-K and in accordance with Securities and Exchange Commission rules, is to
disclose the letter KPMG LLP provided to the Securities and Exchange Commission
on Wednesday, May 12, 2010, in connection with the matters discussed in Item
4.01 and Item 4.02 below. Except for the second paragraph under the
subsection “Other Information” of “Item 4.02, Non-Reliance on Previously Issued
Financial Statements or a Related Audit Report or Completed Interim Review” and
the filing of KPMG LLP’s letter herewith, the disclosures made in the initial
Form 8-K, as set forth below, remain unchanged.
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Item
4.01.
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Changes in
Registrant’s Certifying
Accountant.
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Resignation
of Independent Auditors
On April
23, 2010, TierOne Corporation (the “Company”) was advised
orally by KPMG LLP (“KPMG”), the Company’s
independent registered public accounting firm, that KPMG was resigning from its
position as the independent auditors of the Company and of the TierOne Bank
Savings Plan, effective immediately. The oral resignation was
subsequently confirmed in writing. A copy of the letters of
resignation are attached to this Current Report on Form 8-K as Exhibit 99.1 and
Exhibit 99.2.
Prior to
April 23, 2010, KPMG had not previously advised management or the Company’s
Audit Committee of its intention to resign its engagement as the Company’s
independent registered public accounting firm. The resignation was
not sought or recommended by the Company’s Audit Committee. The Audit
Committee is in the process of commencing an immediate search for a new
independent accountant.
It is the
Company’s understanding that KPMG has resigned as a culmination of factors
related to an examination by the Office of Thrift Supervision (OTS), TierOne
Bank’s primary regulator, which required the Company to reevaluate its loan loss
provisions for the quarter ended June 30, 2009. Specifically, on
April 25, 2010, KPMG orally advised the Company (through the Company’s Audit
Committee) that KPMG requested on multiple occasions, and did not timely
receive, a document estimating potential additional needs for specific reserves
(the “document”), which was provided to the OTS and referenced in an OTS
examination report, and that the Company allegedly asserted to the OTS, after
the OTS had requested an additional copy of it, that the document had been
destroyed. KPMG further indicated that the document, and management’s
alleged actions related to it, lead KPMG to conclude that it is no longer able
to rely on management’s representations.
Contrary
to KPMG’s position, the Company had previously provided the document to
KPMG. Moreover, the document was provided electronically to the OTS
and was not destroyed by the Company. The Company also notes that at
no point did KPMG inform the Company’s Audit Committee of the failure to receive
the document, and that as recently as April 19, 2010, KPMG had affirmed (without
absolute assurance ) that it believed it could be in a position to issue its
audit opinion in time for the Company to file its Annual Report on Form 10-K for
the year ended December 31, 2009, amended Form 10-Q for the quarter ended June
30, 2009 and Form 10-Q for the quarter ended September 30, 2009 by April 30,
2010.
Reportable
Events and Disagreements with the Independent Auditors
The
report of KPMG on the financial statements of the Company for the fiscal year
ended December 31, 2008 contained no adverse opinions or disclaimer of opinion
and was not qualified or modified as to uncertainty, audit scope or accounting
principles (KPMG did not issue a report for the fiscal year ended December 31,
2009). For the fiscal years ended December 31, 2008 and December 31,
2009 and through the date of this report, there were no disagreements with KPMG
on any matter of accounting principles or practices, financial statement
disclosure or audit scope or procedure which, if not resolved to the
satisfaction of KPMG, would have caused it to make reference to the subject
matter of such disagreement in its reports on the financial statements for such
fiscal years. Nor, except to the extent described below in this Form
8-K, were there any reportable events within the meaning of Item 304(a)(1)(v) of
Regulation S-K for the fiscal years ended December 31, 2008 and December 31,
2009 and through the date of this report. In connection with KPMG’s
resignation, KPMG advised the Company orally that it had concluded that it is no
longer able to rely on management’s representations and that it was withdrawing
its audit opinion relating to the Company’s financial statements at and for the
year ended December 31, 2008 contained in the Annual Report on Form 10-K filed
by the Company on March 13, 2009 (the “2008 Form 10-K”) because such financial
statements contain material misstatements related to certain out of period
adjustments for loan loss reserves; and that it was withdrawing its internal
control assessment relating to the Company’s financial statements at and for the
year ended December 31, 2008 contained in the 2008 Form 10-K due to a material
weakness in internal control over financial reporting related to the material
misstatements.
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Item
4.02.
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Non-Reliance on
Previously Issued Financial Statements or a Related Audit Report or
Completed Interim
Review.
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Previous
Reports on Financial Statements Disagreements with the Auditors
KPMG has
advised the Company and the Company’s Audit Committee orally that (1) it has
withdrawn its audit opinion relating to the Company’s financial statements at
and for the year ended December 31, 2008 contained in the 2008 Form 10-K because
such financial statements contain material misstatements related to certain out
of period adjustments for loan loss reserves; and (2) that it has withdrawn its
internal control assessment relating to the Company’s financial statements at
and for the year ended December 31, 2008 contained in the 2008 Form 10-K due to
a material weakness in internal control over financial reporting related to the
material misstatements. As a result, KPMG has advised the Company and
the Company’s Audit Committee orally that these financial statements should no
longer be relied upon. In addition, KPMG has advised the Company
orally that the financial statements as of and for the three-month period ended
March 31, 2009 contained in the Quarterly Report on Form 10-Q filed by the
Company on May 8, 2009 should no longer be relied upon and that KPMG was
withdrawing its review of such financial statements. As previously
reported by the Company, the Audit Committee of the Company determined that the
financial statements as of and for the three-month and six-month periods ended
June 30, 2009 contained in the Quarterly Report on Form 10-Q filed by the
Company on August 10, 2009 should not be relied upon.
Other
Information
The
Company is currently delinquent in the filing of its Form 10-Q for the fiscal
quarter ended September 30, 2009 and its Form 10-K for the fiscal year ended
December 31, 2009. As previously reported by the Company, these
delinquencies have been caused by the Company’s need to reevaluate its loan loss
provisions for the quarter ended June 30, 2009, in response to an examination by
the OTS.
The Company provided KPMG a copy of this
Form 8-K and requested KPMG to furnish a letter addressed to the Securities and
Exchange Commission stating whether it agrees with the statements made in both
Item 4.01 and this Item 4.02 of this Form 8-K, and, if not, stating the respects
in which it does not agree. KPMG’s response letter is filed as
Exhibit 99.4 to this Form 8-K amendment. The response letter notes
that KPMG does not agree with some of the statements made in the initial Form
8-K. Nonetheless, the Company believes that its prior disclosure is
accurate and has not made any changes to the disclosure in Item 4.01 and Item
4.02.
The
Company’s Audit Committee has discussed the matters disclosed above with
KPMG.
On April
25, 2010, the Company issued a press release reporting the matters disclosed
above. A copy of the press release is attached to this Current Report
on Form 8-K as Exhibit 99.3.
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Item
9.01.
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Financial Statements
and Exhibits.
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The following exhibits are attached to
this Current Report on Form 8-K:
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99.1
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Letter
from KPMG LLP to TierOne Corporation, dated April 23,
2010.*
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99.2
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Letter
from KPMG LLP to TierOne Bank Savings Plan, dated April 23,
2010.*
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99.3
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Press
Release of TierOne Corporation, dated April 25,
2010.*
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99.4
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Letter
from KPMG LLP to Securities and Exchange Commission, dated May 12,
2010.
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_______________
* Previously filed.
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 hereunto
duly authorized.
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TIERONE
CORPORATION |
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Date: May
14, 2010
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By:
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/s/ James
A. Laphen |
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James
A. Laphen
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President
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TIERONE
CORPORATION
Exhibit
Index to Current Report on Form 8-K
Exhibit
Number Description
99.1 Letter
from KPMG LLP to TierOne Corporation, dated April 23, 2010.*
99.2 Letter
from KPMG LLP to TierOne Bank Savings Plan, dated April 23, 2010.*
99.3 Press
Release of TierOne Corporation, dated April 25, 2010.*
99.4 Letter
from KPMG LLP to Securities and Exchange Commission, dated May 12,
2010.
_______________
* Previously
filed.