At the risk of seeming like I’m pandering, here (given my comments of last evening) — to the more sophisticated readers looking in, at Textura’s offices, and elsewhere — I should point out that Mr. Habiger (who I am sure is doing a very conscientious job as the “interim” CEO), will never be able to tell the SEC (or anyone else) that he was only acting temporarily as the chief executive officer under Section 302 of Sarbanes-Oxley — and expect to escape liability, of any sort. [Significantly, from a liability perspective — as I type this, Textura is trading at $15.30-something, on the NASDAQ — very near an all time NASDAQ public trading low.]
That is, the SEC requires that any person “performing similar functions” to a CEO, regardless of title (“interim” or otherwise), certify that he/she personally “…based on his or her own knowledge, is responsible as a signatory for the issuer’s disclosures under the Exchange Act liability provisions66 and can be liable for material misstatements or omissions under general antifraud standards67 and under SEC authority to seek redress against those who cause or aid or abet securities law violations.68 An officer providing a false certification potentially could be subject to SEC action for violating Section 13(a) or 15(d) of the Securities And Exchange Act and to both the SEC and private actions for violating Section 10(b) of the Exchange Act69 and Exchange Act Rule 10b-5….”
Given that nothing has been said by the company, in an SEC filing of its own, since the departure of Mr. Allin, proper, at year end 2015, I am very hopeful that Mr. Habiger is diligently quizzing his underlings — about all manner of financial reporting, and disclosure controls, and procedures — as Textura now prepares its required SEC Form 10-K and proxy statement. That would be doubly true, given that a putative securities fraud class action suit is pending in the federal court (albeit mostly on allegations that relate to Mr. Allin’s tenure), in Chicago, against Textura, at the moment. But that’s the rub of being an SEC public company officer: Mr. Habiger’s certification, attached to the upcoming Form 10-K, will essentially indicate that nothing untoward has occured since April of 2015. And that will be his own personal liability, if it turns out to be untrue.
That, my friends, is why it struck me as so odd that he hasn’t even listed his Textura CEO SEC pubilc company responsibilites role — in any of his bio materials, as of last night — more than nine months on.
But (as I wrote last night) if Textura is sold pretty soon — and for a reasonably high price, (almost) all of this will vanish into the mists, Brigadoon-like.
We shall see.