Ex-Apple official settles with SEC

0 Comments | Oakland Tribune, Aug 14, 2008 | by wire

WASHINGTON -- The former top attorney at Apple Inc. on Thursday agreed to pay $2.2 million to settle federal regulators' charges that she altered company records to conceal improper backdating of stock options for senior executives including Steve Jobs.

The Securities and Exchange Commission announced the settlement with former Apple general counsel Nancy Heinen, whose civil trial in the case had been scheduled for next year. Heinen neither admitted nor denied wrongdoing in settling the SEC's lawsuit, which was filed last year in federal court in San Jose.

Heinen did agree to a five-year ban against serving as an officer or director of any public company, and to refrain from future violations of the securities laws. Under a separate administrative proceeding at the SEC, she also consented to a three-year suspension from practicing as an attorney for a public company.

Heinen is paying nearly $1.6 million in restitution, plus $400,219 in interest and a civil fine of $200,000.

"I cherish the great people I worked with at Apple, and I am proud of my contributions to its historic turnaround and current success," Heinen said, adding that with the lawsuit settled she will now move on to addressing "greater challenges."

Hundreds of companies have been investigated by the SEC and federal prosecutors over stock options backdating, but Cupertino, Calif.-based Apple was the most high-profile one to be scrutinized for possible criminal violations. The criminal probe of the maker of iPods, iPhones and Macintosh computers ended in July, after the specter of a possible indictment hung over the company for more than a year.

Jobs, Apple's chief executive, had been considered likely to be called to testify in Heinen's SEC trial. Apple has acknowledged that Jobs was aware of backdating but said he didn't benefit financially from it and didn't understand the accounting implications. Jobs' position was buttressed by the government's decision not to pursue criminal charges.

The SEC alleged in its suit that Heinen caused Apple to fraudulently backdate two large options grants -- 4.8 million options to Apple's executive team in February 2001 and 7.5 million to Jobs in December 2001 -- and altered company records to conceal the move. As a result, Apple underreported its expenses by nearly $40 million, the SEC said.

The settlement with Heinen "reflects the gravity of what we think occurred here," Marc Fagel, regional director in the SEC's San Francisco office, said in a phone interview.

Stock options give employees the right to buy shares of stock at a predetermined time. Especially popular in Silicon Valley during the high-tech boom, they're a coveted incentive to lure and keep talent, particularly when granted by newly public companies with the opportunity for rapid growth.

Backdating options make the rewards even more lucrative by retroactively setting the exercise price to a low point in the stock's value. Usually, a stock option's exercise price coincides with the market value at the time of a grant to give the recipient an incentive to drive the price higher.

If companies backdate options without properly disclosing and accounting for the move, it can cause profits to be overstated and taxes to be underpaid.