In essence, the revision opțiuni acordate companies to increase opțiuni acordate compensation without informing their if the compensation was in the form of stock options contracts that would only become valuable if the underlying stock price were to increase at a later time. The problem with this practice, according to the SEC, was that stock option backdating, while difficult to prove, could be considered a criminal act.
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One of the larger backdating scandals occurred at Brocade Communicationsa data storage company. It allegedly failed to inform investors, or account for the options expense s properly.
In the modern business opțiuni acordate, the Sarbanes-Oxley Act has all but eliminated fraudulent options backdating by requiring companies to report all options issuances within 2 days of the date of opțiuni acordate. District Court for the Northern District of California.
However, in late and earlythe issue of stock options backdating gained a wider audience. Numerous financial analysts replicated and expanded upon the prior academic research, developing lists of companies whose stock price performance immediately after options grants to senior management the purported dates of which can be ascertained by inspecting a company's Form opțiuni acordate filings, generally available online at the SEC's website was suspicious.
For instance, public companies generally grant stock options in accordance with a formal stock option plan approved by shareholders at an annual meeting. Many companies' stock option plans provide that stock options must be granted at an exercise price no lower than fair market value on the date of the option grant.
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Thus, backdating can be misleading to shareholders in the sense that it results in option grants that are more favorable than the shareholders approved in adopting the stock option plan. The other major way that backdating can be misleading to investors relates to the method by which the company accounts for the options.
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Until very recently, a company that granted stock options to executives opțiuni acordate fair market value did not have to recognize the cost of the options as a compensation expense. However, if the company granted options with an exercise price below fair market value, there would be a compensation expense that had to be recognized under applicable accounting rules.
If a company backdated its stock options, but failed to recognize a compensation expense, then the company's accounting may not be correct, and its quarterly and annual financial reports to investors may be misleading. Although many companies have been identified as having problems with backdating, the severity of the problem, and the consequences, fall along a broad spectrum.
At one extreme, where it is clear that top management was guilty of conscious wrongdoing in backdating, attempted to conceal the backdating by falsifying documents, and where the backdating resulted opțiuni acordate a substantial overstatement of the company's profitability, SEC enforcement actions and even criminal charges have resulted.
Toward the other extreme, where the backdating was a result of overly informal internal procedures or even just delays opțiuni acordate finalizing the paperwork documenting options grants, not intentional wrongdoing, there is likely to be no formal sanction—although the company may have to restate its financial statements to bring its accounting into compliance with opțiuni acordate accounting rules. With respect to the more serious cases of backdating, it is likely that most of the criminal actions that the government intended to bring were brought in There is a five-year statute of limitations for securities fraud, and under the Sarbanes-Oxley Act ofoption grants opțiuni acordate senior management must be reported within two days of the grant date.
This all but eliminated the opportunity for senior management to engage any meaningful options backdating. Therefore, any criminal prosecution is likely to be based on option grants made before Sarbanes-Oxley took effect, and the deadline facing the government for bringing those prosecutions has already passed. As of 17 Opțiuni acordatebackdating has been identified at more than companies, and led to the opțiuni acordate or resignation of more than 50 top opțiuni acordate and directors of those companies.
Notable companies embroiled in the scandal include Broadcom Corp.
Some of the more prominent corporate figures involved in the controversy currently are Steve Jobs and Michael Opțiuni acordate. Anderson and former Apple general counsel Nancy R. Heinen for their alleged roles in backdating Apple options. Deferral of recognition into employee's gross opțiuni acordate edit ] According to Section 83 of the Codeemployees who receive property from the employer must recognize taxable income in the year in which that property vests i.
Such backdating may be construed as illegally avoiding income recognition because falsely under-reporting the market price of such stocks makes them appear to have no value in excess of the strike price at the time the option is granted. Denial of deduction under Section m of the tax code[ edit ] The Clinton tax increase amended the Code to include Section m which presumptively makes compensation in excess of one million dollars unreasonable for public companies.
According to the September 5, Joint Committee on Taxation background briefing if the CEO or other opțiuni acordate executive gets stock option grants with exercise price equal to market price, then the options granted would be presumed to be reasonable because they would be performance based.
However, if the exercise price is below the market price so that the options are in the money, then the compensation will not be performance based, as the options would have intrinsic value immediately.
See page 5 of the background briefing. As an economic and practical matter, backdating and cherry-picking dates with the lowest market price of the underlying stock may be evidence that the options granted were not reasonable compensation, because the grant of the options would not be performance based.
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In such a case, tax deductions would be denied. Is Backdating the New Corporate Scandal?