The stakes just got higher for financial executives ensnared in the ongoing options backdating investigation by the Securities and Exchange Commission (SEC). In late January, former SafeNet CFO Carole Argo was sentenced in U.S. District Court in New York to six months in prison and fined $1 million for her role in the improper timing of millions of dollars of employee stock option grants between 2000 and 2006.
The jail sentence–the first for a CFO–is considered a harbinger os prosecutions to come by some legal experts. "I think that this is the tip of iceberg and more corporate executives, including CFOS, will be held responsible," says attorney Jacob Zamansky, a former prosecutor who represents shareholders. "CEOs and CFOs should be held criminally accountable in egregious situations where they participate in fraud."
reviously, a handful of CFOs, including Apple's Fred Anderson and Brocade's Michael Byrd, both since retired, were charged, but most have settled out of court. Without admitting guilt, Anderson relinquished more than $3.5 million in stock-option gains and paid a $150,000 fine. Byrd reportedly received immunity for testifying against his colleagues and paid close to $2 million in fines. Until now, most of the charges brought have been civil not criminal.
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The good news, according to Argo's attorney Paul Engelmayer, is that backdating cases are difficult to prove without a paper trail showing that options were changed, when they were changed and that they were changed purposely to defraud. A perhaps na??ve Argo made the mistake of explaining in a 2004 e-mail that the changes better ensured employees would make money on options. "It was the smoking gun," acknowledges Engelmayer.
The practice is illegal unless the gains are disclosed and reported as expenses. Argo was found guilty of inflating earnings by $14 million and possibly leading to shareholder losses after the expos?(C). The ongoing investigation is far from over. More than 200 companies acknowledged internal or federal investigations into improper timing and about 100 said they will have to restate earnings as a result.
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