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Because backdating and related accounting treatment could result in inaccurate statements in public disclosures and financial documents, the practice may expose companies and executives to claims for liability under federal and state securities laws.
The following laws may be of relevance: Schedule 14A also provides that when proxies are solicited for corporate action related to the granting of share options, the proxy statement must include a summary compensation table which identifies the compensation of the CEO and the other four most highly compensated officers for the previous three fiscal years.
Under FAS 123R, a discounted option has a higher cost to the issuing company.
To correct the erroneous accounting treatment, the company would need to restate its financials back to the date when the options first vested and continue through the life of the option.
The new rules provide guidance and require detailed disclosure in table form and text.
Importantly, any information relating to a company practice setting the strike price based on a date other than the actual grant date must be disclosed.
Backdated options granted at an exercise price that is less than the market price do not qualify for the favourable tax treatment applied to ISOs and must be treated as NQSOs.For example, in December 2007, the SEC settled an enforcement action in an options backdating case against William W Mc Guire, the former CEO and Chairman of United Health Group, Inc.for a record US8 million (about EUR301 million).Therefore, a company could be liable for the amount of the income tax and FICA that it failed to withhold and report on the exercise of the backdated option, in addition to interest and potential penalties.That amount could be significant, depending on the number of backdated options subject to improper tax treatment.
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Although these developments have occurred since 2002, the prevalence of backdating was not discovered until 2005.