Last October I interviewed Scott Mc Nealy, CEO of Sun Microsystems (SUNW), for a different story, and I brought up the subject of options backdating.
I thought his comment was telling: “When I sign a document and it has a date thing there? I didn’t even go to law school, and I figured out that that’s probably the most appropriate thing.” By the way, even in the unlikely event that someone backdates options and accounts for them properly–i.e., treats them as in-the-money options–he would still almost always be violating the terms of the stock option plan which has been approved by shareholders.
Sure the accounting rules are arcane and most people don’t know them.
But if someone asks you to write down a date from a month ago on a legal document, rather than today’s date, doesn’t it give you pause?
She’s saying that shareholders will naively think that the options were really granted on January 2, leaving them suspicious of springloading.
It goes without saying that they also won’t realize that, in reality, it’s all being done a month later.
Now, two months later you prepared a contract that is ready to be signed if you can just figure out the right date. It’s harder than you think to put in a prior date and have it look authentic.
In general, “backdating” should be avoided, whether we are talking contracts or old flames. Yes, I know businesses do it all the time but that doesn’t mean it is good business practice; and in many cases it may be considered fraud or misrepresentation. For example, the first payment is due upon signing two months ago…except the check was never written or deposited in a bank. So, there is no intent to defraud or mislead or misrepresent the true nature of the agreement.
And if there is a stock option plan that doesn’t contain that language, the backdater would still have to make disclosures in a half-dozen publicly filed documents about what he was doing. Something like: “Please note that when we grant options, we sometimes pretend that we grant them on certain dates when in fact we grant them weeks later. We just do this to amuse ourselves, because we account for them properly using the real dates.” Could the next person who writes in to remind me that backdating isn’t illegal do me a favor?For example, if the agreement requires the assignment of intellectual property rights (past, present and future), why not just use The fix may be different for different agreements.If it is a promissory note, compute the accrued interest prior to signing the note and include it in the principal amount of the note.There are some exceptions to the former; none (based on my experience) to the latter. All you have to do is write in a prior date and sign it. In most agreements, using a prior date to make it look like it was signed earlier is the wrong way to go. The problem is that it may not work in every situation.However, there is no right answer for all situations. The easiest way is to make the contract happen on the date that it is signed. There it is, the document is signed and delivered as if it were signed and delivered weeks ago, months ago, even years ago. For example, let’s suppose there is a confidentiality provision in the agreement or some other obligation that was supposed to happen prior to signing.Typically, this is done by stating at the beginning of the contract that However, if there are intellectual property rights, confidentiality obligations or other pre-existing obligations, you may have a problem because any rights arising prior to signing the contract would be lost. How do you hold someone responsible for doing something before they knew it was an obligation? Sometimes, the best solution is just to fix the problem.