Apple's ex-CFO's statement on options suit
Fred Anderson's statement on SEC settlement, released by his lawyer Jerome Roth.
NEW YORK (CNNMoney.com) -- The following statement is attributed to Mr. Fred Anderson's attorney Jerome Roth, a partner at Munger, Tolles & Olson LLP in San Francisco.
This statement was issued following the announcement by the United States Securities and Exchange Commission that it had settled claims against Mr. Anderson arising from his tenure as Chief Financial Officer at Apple.
"Fred Anderson has a long standing impeccable reputation and is widely regarded as one of the most ethical CFO's in the nation whose extraordinary contributions to Apple's success during his eight-year tenure are unquestioned. He is accurately recognized by many current and former Apple employees and throughout the industry as a man of exceptional ability, achievement and integrity.
"With respect to today's announced settlement by the SEC of its complaint against him, Fred is pleased to put this matter behind him.
"In the settlement Fred makes no admission or denial of the claims by the SEC. The terms of the settlement permit Fred to continue to act as an officer or director of public companies and do not bar him from practicing before the SEC. The claims against him also do not include fraud under the two antifraud provisions of the securities laws requiring proof of knowing misconduct.
"With respect to the Executive Team grant that is the subject of the complaint against him:
* Fred was told by Steve Jobs in late January 2001 that Mr. Jobs had the agreement of the Board of Directors for the Executive Team grant on January 2, 2001. At the time Mr. Jobs provided Fred this assurance, Fred cautioned Mr. Jobs that the Executive Team grant would have to be priced based on the date of the actual Board agreement or there could be an accounting charge.
He further advised Mr. Jobs that the Board would have to confirm its prior approval in a legally satisfactory method. He was told by Mr. Jobs that the Board had given its prior approval and the Board would verify it. Fred relied on these statements by Mr. Jobs and from them concluded the grant was being properly handled.
* Fred understood that, under Apple's stock option plan and accounting rules at the time, a grant date could be moved to a later date than the date of the actual grant decision and that there would be no compensation expense as long as the stock price on the new date was higher than the price on the original date. Apple's 1998 Executive Officer Stock Option Plan provided in Section 16 that 'The date of grant of an Option...shall be, for all purposes, the date on which the Administrator (in this case the Board) makes the determination granting such Option...or such later date as is determined by the Administrator. '
Mr. Anderson understood that the date of grant was to be moved forward pursuant to this provision from January 2 to January 17 to avoid any appearance of impropriety that might arise from a grant awarded just prior to the stock price rise that resulted from the 2001 MacWorld exhibition and Mr. Job's keynote speech at the exhibition on January 9.
He further understood that the January 17 date was selected by Mr. Jobs and Ms. Nancy Heinen, the former General Counsel, and that the stock price on January 17 was higher than the price on January 2.
* Finally, Mr. Anderson understood that the Board of Directors, which consisted of sophisticated corporate executives of national stature, including the former Chief Financial Officer of IBM, verified the January 17 date by signing in early February 2001 a Unanimous Written Consent (UWC) with an effective date of January 17.
It now appears the Board may not have given the necessary prior approval to the grants, contrary to what Mr. Anderson understood from Mr. Jobs and from the Board's signing of the UWC with an effective date of January 17.
"Mr. Anderson has agreed to pay disgorgement, the difference in the value of the stock between the January 17 date and the date in early February when the UWC was signed by the Board.
"With respect to the October 2001 grant to Mr. Jobs that is also the subject of the complaint, Fred had virtually no involvement as he was not a member of the Board and did not have a formal role in compensation matters pertaining to the CEO. Fred had absolutely no knowledge of any alteration of Board documents and this is reflected by the fact that he is not even mentioned in those charges.
"Fred Anderson remains proud of his accomplishments as a former CFO and Board member at Apple. He wishes the company and its many talented employees continued success. With this matter resolved, Fred looks forward to continuing his career as a Founder and Managing Director of Elevation Partners."