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The government was not able to win in a backdating case against Irvine, CA-based computer chip maker Broadcom, whose case was thrown out of court in December 2009."Options backdating has always been fairly well removed from the typical securities fraud involving falsified accounting records or insider trading, the type of conduct that juries can easily see is improper," wrote professor Peter J.

Henning of Wayne State Law School in a blog about the Broadcom case going awry for the government. There were a number of factors, including damning testimony from witnesses who said former Brocade human resources executive Stephanie Jensen told executives not to send e-mails to each other or document anything about options backdating because their CEO, Reyes, did not want a paper trail. And it was a total fraud."The defense admitted that backdating and accounting mistakes took place, but argued that Reyes was not alone and did not knowingly commit criminal activity.

If the company sets the prices of the options grant well below the market price, they will instantaneously generate an expense, which counts against income.

Performance-based compensation, on the other hand, was deductible.

Reyes, the former chief executive of the San Jose, CA-based data center infrastructure company, was found guilty on eight counts, including securities fraud and making false statements; however, he was acquitted on the charge of conspiracy.

This is the not the first case brought by the government against Reyes, who had been found guilty on 10 counts of backdating options in 2007, where he was fined million and sentenced to 21 months in prison.

(For more insight, see ) Although it may appear shady, public companies can typically issue and price stock option grants as they see fit, but this will all depend on the terms and conditions of their stock option granting program.

However, when granting options, the details of the grant must be disclosed, meaning that a company must clearly inform the investment community of the date that the option was granted and the exercise price. In addition, the company must also properly account for the expense of the options grant in their financials.




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