And to say it’s up to the bean-counters to catch this situation is silly, because the whole reason you’re using phony dates is so that the bean-counters won’t know what you really did.And this is why defenses to backdating sometimes get hard for me to understand.Those plans almost always require that the options be granted at fair market value on the date of the grant.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?
The court stated the general rule that “a written contract becomes binding when it is finally executed or delivered, unless a different intent appears.” Although the face of the main agreement in the FDIC/Weatherford transaction expressed an intended effective date of November 7, 2008, ancillary documents signed in connection with the transaction weren’t backdated, and the main agreement didn’t explain why it was backdated.
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?
Now the fair response in Jobs’s defense at this juncture would be to say: “Well, look, people just didn’t look at this stuff the way they do today, post-Sarbanes-Oxley, and so on.
This was spitting on the sidewalk back then.” And I can understand that argument.