2007Public Service

Monster Worldwide Gave Officials Options Ahead of Share Run-Ups

By: 
Charles Forelle and Mark Maremont
June 12, 2006

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The operator of job-search Web site Monster.com frequently granted options to top executives dated ahead of sharp run-ups in its share price, raising questions about whether the grants were backdated or otherwise timed to boost their value to the recipients.

The findings, gleaned from securities filings made by New York-based Monster Worldwide Inc., come amid a widening scandal over the timing of executive options. About 40 companies have been caught up in inquiries concerning possible backdating. The Securities and Exchange Commission is investigating at least two dozen companies, and federal prosecutors in several districts have issued subpoenas to about 20.

Late Friday, for-profit education provider Apollo Group Inc. said its board would hire an outside firm to review its options practices. And arts-and-crafts retailer Michaels Stores Inc. last week said its board had initiated a review of past options grants.

An option gives its holder the right to buy shares at an exercise, or strike, price -- typically the market value of a company's stock on the date of the award. Any subsequent rise in the market price of the shares allows the option holder to cash in the option and pocket the difference between the exercise and market prices.

Monster's securities filings show it made seven options grants between 1997 and 2001 to James J. Treacy, who became its No. 2 executive before leaving the company in 2002. One was dated at the stock's lowest closing price of 1997, and three others carried the lowest closing prices of various quarters. Other senior executives and employees also received grants with some of those dates.

A Wall Street Journal analysis puts the odds at about one in nine million that a pattern of grants as favorable or more favorable than Mr. Treacy's would have occurred if the dates were selected randomly, without regard to stock price.

That so many of the Monster grants were dated at low points just ahead of run-ups raises the question of whether the grants were approved at some other time but backdated to take advantage of the earlier, lower prices. Options are intended to reward executives for pushing up the price of their company's stock; backdating undermines that incentive by giving executives potential profits that aren't linked to performance.

Mr. Treacy, who has since left Monster, said that, like any other employee, he had no involvement in the options-granting process, which he said was "all in the purview" of the board's compensation committee and Andrew McKelvey, Monster's founder and chief executive. He said he believes the dates were "the days that the comp committee and Andy granted" the options.

Mr. McKelvey, who himself never received options from the company, said he is "completely responsible," as the company's most senior executive, for option grants to everyone else. He said Monster has begun a review to determine why the grants were often priced at lows. "To date there is nothing that we see in terms of backdating or improprieties," he said, stressing that the review wasn't complete. Monster's board has also begun a review.

Mr. McKelvey said his practice at the time was to draw up a list of executives and employees to receive options, with input from managers, and send it to the compensation committee for approval. After that, "I don't know what the mechanics were."

At Apollo Group, which runs the University of Phoenix, the acting executive chairman, John Sperling, received five grants between 1995 and 2001. One, in January 2000, carried an exercise price equal to the year's lowest closing price. Another, in December 2000, was at the fourth quarter's low. Another carried the lowest closing price of 2001's second half. Other senior Apollo executives also received options on those dates.

Mr. Sperling founded Apollo and was its chairman until 2004. He also was president or chief executive at various times before August 2001. Apollo officials didn't return numerous calls and emails seeking comment. The company has a market value of about $9.3 billion.

Apollo shares fell 3.1% Thursday and Friday, after a Lehman Bros. analyst issued a report calling the company's options-granting practices "highly questionable." The analyst, Gary Bisbee, said it was impossible to tell definitively whether Apollo had backdated options. But he said further scrutiny by the SEC or other government bodies "is a real risk to consider."

Apollo said on Friday that its management "believes that it has complied with all applicable laws" and hadn't backdated options. The company said it would hire the outside firm to "review and confirm these conclusions."

Prior to the company's statement, John R. Norton III, chairman of the compensation committee of Apollo's board, said in an interview Thursday: "Our option policies are clean and straightforward. We never backdated options. Never once." Mr. Norton added that hearing about other companies that may have backdated options "just blew me away." He said he was amazed at the lengths some executives would go "to steal from the shareholders." Yesterday, Mr. Norton said he didn't have time to comment further.

One possible explanation for some of Apollo's fortuitous grants: The company may have been "news timing," issuing grants just ahead of or after market-moving news. The December 2000 grant was dated just two trading days before the company issued better-than-expected quarterly earnings. The stock zoomed up from a split-adjusted $14.84 on the date of the grant to $20.89 the day after the earnings were released.

Although the legality of issuing options ahead of good news isn't clear, the SEC took a dim view of the practice in a case last year. Microchip maker Analog Devices Inc. said it reached a tentative settlement with the commission after an investigation of, among other things, just such a practice. The proposed settlement would conclude that the company "should have made disclosures in its proxy filings to the effect that [it] priced these stock options prior to releasing favorable financial results."

Another Apollo grant, in December 1998, came just after the stock slumped sharply on investor concerns following another release of quarterly earnings.

Option grants are governed by strict accounting and tax principles that call for unfavorable treatment of options that are "discounted" -- that is, granted with a strike price less than the market value at the time of grant. Nothing is inherently wrong with granting a discount option, but a company that does so must disclose it and heed the accounting and tax consequences. An option that is backdated to a date with a lower market price is effectively a discount option that may have skirted these consequences.

Several companies under options scrutiny have indicated they will be restating their financial results. Executives who knowingly took an active role in a backdating scheme for personal enrichment could face criminal fraud charges.

The Senate Finance Committee tomorrow is scheduled to hold a hearing at which a senior Justice Department official has been asked to testify about the legal issues surrounding options backdating, including the status of federal investigations in the area.

Though the fortuitously timed grants at Monster and elsewhere suggest that backdating may be involved, it isn't clear exactly how the grants landed on the favorable days. Luck may have played a role. It is also possible that some companies engaged in news timing.

well-timed

Among the eyebrow-raising grants at Monster is one dated April 4, 2001, at the nadir of a steep but short-lived decline in Monster's share price and the lowest closing price of the first half of 2001. Shares leapt 67% in the 20 trading days following that date. Mr. McKelvey said that grant was broad, covering some 2.2 million options to many employees.

Several directors, including members of the compensation committee, also received the favorable April 2001 grant, which carried a strike price of $30.63. The grant was in addition to the regular nonemployee directors' grant, which came in June and carried a strike price of $61.82, filings show.

Given Monster's current stock price of $42, the April grant is "in the money" and can be cashed in for profit. The June grant can't.

Mr. McKelvey says he had long been parsimonious with board compensation, and that directors "complained" at a 2000 meeting that they weren't paid enough. It was decided that they be included in the next broad-based grant -- the well-timed April 2001 issuance.

Another unusual grant, on Dec. 12, 1997, was dated at the bottom of a sharp dip in Monster's share price and ahead of a rapid recovery. Dec. 12 was the lowest closing price of the second half. And it wasn't the only well-timed grant in 1997: Top executives also received an option dated Jan. 6 -- the lowest closing price of the year.

Mr. Treacy said he didn't notice the favorable strike prices at the time. "I was busy working, and there was a lot to do and a lot of moving parts and a family to get home to," he said.

He also said that not all of his grants were unusual. A 2001 grant came before a fall in share price, and another grant was dated on the same day the company publicly announced his promotion to president. He left the company in 2002, but remained on the board until 2003.

Mr. Treacy never exercised any of his options while he was an executive. As part of his separation agreement, the company allowed him to keep them after he left. He cashed some out for the first time in December, he said. Asked how much he made on the transaction, Mr. Treacy said he doesn't have to disclose the sum. "I did OK," he said. "But I waited a long time."

Public Service 2007