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The Securities and Exchange Commission on Tuesday charged two former Apple senior officials with the improper handling of stock options to upper executives, including chief executive Steve Jobs.
Meanwhile, one of the defendants, former chief financial officer Fred D. Anderson, said in a statement filed by his attorney that he warned Jobs about the accounting implications related to the backdating of stock-option grants, The Wall Street Journal reported.
The SEC charged former general counsel Nancy R. Heinen with the fraudulent backdating of 4.8 million options that were handed out to Apple's executive team in February 2001, and of 7.5 million options granted to Jobs 10 months later. Heinen also was charged with altering company records to conceal the fraud.
The SEC said Anderson should have noticed Heinen's actions, and charged him with failing to ensure that Apple's financial records were accurate. Anderson, without admitting or denying the allegations, settled with the SEC by agreeing to pay $3.5 million, which includes the money he made on the stock option grants, plus penalties.
In the statement filed by his attorneys after the settlement, Anderson said he warned Jobs that an accounting charge could result from the backdated options granted in January, and that Jobs assured him the grant had been previously approved by the company's board, the Journal said. The grant date was selected by Jobs and Heinen, Anderson claimed.
In October 2006, Apple said an internal probe had found that Jobs knew about some backdating of stock options, but did not reap any benefits. The company issued the statement in announcing Anderson's resignation.
Backdating is a practice in which a company retroactively grants options on dates when its stock price is relatively low, maximizing the potential profits for the option holder. The practice isn't illegal, but has to be disclosed and accounted for in a company's financial statements. In Apple's case, the failure to report its backdated options caused the company to under-report expenses by nearly $40 million.
"Apple's shareholders relied on Heinen and Anderson, as respected legal and accounting professionals, to ensure the accurate reporting of the company's executive compensation," Marc J. Fagel, associate regional director of the SEC's San Francisco office, said in a statement. "Instead, they failed in their duties as gatekeepers and caused Apple to conceal millions of dollars in stock option expenses."
According to the SEC complaint, Heinen allegedly instructed her staff to prepare documents that falsely indicated Apple's board had approved the grant to the executive team on Jan. 17, 2001. As a result, $18.9 million in compensation expenses weren't recorded. For his part, Anderson was accused of failing to tell Apple auditors what happened, and of failing to make sure Apple's financial statements were accurate. Heinen and Anderson each received millions of dollars in backdated options.
In the December 2001 grant to Jobs, Heinen backdated the options to Oct. 19, 2001, and then caused Apple to fail to record the $20.3 million in associated compensation expenses, the SEC charged. In addition, Heinen allegedly signed fictitious board minutes stating the board had approved the grant to Jobs on Oct. 19, 2001, at a special meeting that never occurred.
Heinen is charged with violating the antifraud provisions of the Securities Act, lying to Apple's auditors, and violating prohibitions on circumventing internal controls. The SEC is demanding that Heinen return the money she received from the grant and pay penalties. In addition, the commission wants her barred from serving as an officer or director of a public company.
Anderson, without admitting guilt, agreed to a pay the $3.49 million he made in the grants, and pay a civil penalty of $150,000.
The SEC also said Tuesday that it would not bring any charges against Apple, because of its "swift, extensive, and extraordinary" cooperation in the commission's investigation.