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Richard Scrushy, the former chief executive of HealthSouth Corp., repeatedly received stock options dated at low points in the company's stock price, a review of securities filings shows, raising questions about the company's options-granting practices. Patterns of hitting frequent lows in options pricing have also turned up at a number of companies facing probes by federal regulators or prosecutors seeking to learn if the grants were backdated to make them more advantageous to recipients. Some two dozen companies are under federal scrutiny, and about a dozen executives or directors at some of those companies have left their posts in recent weeks. Mr. Scrushy is long gone from HealthSouth, fired by its board in 2003 after accounting fraud brought the rehabilitation-hospital company to the brink of bankruptcy. More than a dozen subordinates pleaded guilty to participating in the $2.7 billion fraud. At his trial last year, Mr. Scrushy was acquitted of all 36 counts against him. But his legal troubles aren't over. The Securities and Exchange Commission has a civil lawsuit against him, and he is standing trial in a bribery case. HealthSouth and Mr. Scrushy are engaged in drawn-out hostilities: The company is suing him for his alleged role in the fraud, and he is suing the company for wrongful termination. A HealthSouth spokesman declined to comment on the circumstances surrounding the particular option grants but said the company has "left the investigation of criminal and possible criminal activities at HealthSouth to the relevant authorities. The new management and the new board continue to cooperate thoroughly in these matters." Mr. Scrushy said in a statement that all HealthSouth options while he was chairman and CEO "were granted on the day of a regularly scheduled board meeting, generally for the closing price as of that day" and "we were acutely aware of the legal requirements" governing options. "They were never backdated." Stock options give an executive the opportunity to profit if the company's share price makes advances. As they are typically structured, an option is granted with a "strike price" set at the market value of the stock on the date of grant. If shares rise, the executive makes money. If they don't, he doesn't. Mr. Scrushy apparently never exercised any of the unusually timed options between 1995 and 2002, although he did exercise a large number of options granted earlier. Upon his firing, the company declared all his outstanding options forfeited. In his suit, Mr. Scrushy is trying to get back his options and other kinds of compensation. Any trouble with the timing of the past option grants could complicate Mr. Scrushy's recoupment efforts and could rattle the company as it seeks to emerge with new management from the shadow of the scandal. Other companies swept up by options trouble have said they may need to make large restatements of financial results to reconcile their books and tax filings for improperly dated options. The pattern of 11 grants Mr. Scrushy received between 1995 and 2002 is improbably fortuitous. Two carried the lowest closing price of the year in which they were granted. Three more were dated at quarterly lows. An additional grant was dated at a monthly low, at the bottom of a sharp V in share price.
A Wall Street Journal analysis, using a methodology that looks only at postgrant-date price appreciation, finds the odds of Mr. Scrushy's grant pattern having occurred by chance is around one in 10,000. That's a low probability, but it doesn't rise to the level of significance of 11 other executive's patterns examined by the Journal in recent months using the same methodology. Many of the 11 companies that issued these grants are now facing federal scrutiny or have launched internal inquiries or both. There are a number of possible explanations other than backdating for Mr. Scrushy's pattern of low-price grants, among them sheer luck. It's also possible the grants were issued at times when executives felt the shares were undervalued, hoping to profit from appreciation. Grants could also have occurred just before stock-moving news, increasing the likelihood that they happened to have come at low points. A number of Mr. Scrushy's grants are noteworthy for their good timing. He received 800,000 options dated Feb. 29, 2000, with an exercise price of $4.875, the stock's closing price that day. The options entitled him to profit on any appreciation above that price. As it turns out, $4.875 was the stock's lowest closing price all year. Two months after the grant date, the shares were 65% higher. By the end of the year, they had reached above $16. Mr. Scrushy's grant in 1995 was apparently dated June 6, securities filings suggest, the date of the company's annual shareholder meeting. The grant carries the closing price of June 5, the year's lowest close. The mechanics of options mean executives have much to gain from lower strike prices. A strike price just a dollar lower on a grant of a million options means, potentially, an extra million dollars in profit. Backdating an option grant to yield a better strike price vitiates the incentive purpose of the grant, effectively letting an executive profit after the fact from stock movements -- a luxury of hindsight no regular investor could ever possess. Backdating can cause accounting and tax problems for the company, and could open up an executive for fraud charges. John S. Chamberlin, a former HealthSouth director who served on the HealthSouth compensation committee from 2000 to 2002, said the committee followed strict protocols in its option grants. Mr. Chamberlin says he believes the effective grant dates of the options matched the days when the options were approved by the compensation committee. "When I was on the compensation committee, everything was handled appropriately," says Mr. Chamberlin. "There was no finessing of anything....To my knowledge, there was no backdating," Mr. Chamberlin says. "No backdating at all, or shooting for lows." But Mr. Chamberlin said he doesn't recall the board approving options more than once a year, and at scattershot times in other years. Mr. Chamberlin said during his time on the committee, options were usually granted in the first quarter of the year, on the same day as the company's board meeting. He says he can't recall why options were granted in November 2001, on a date that was the quarterly low for the HealthSouth share price. "If there had been any backdating or changing of the dollar values, I'm sure we would have noticed it," Mr. Chamberlin said. "I'm confident that wasn't done." Mr. Chamberlin said it would have been reckless for executives who were involved in other fraud at HealthSouth to backdate options because it would have been detected by the board. "I just think those who were involved in the fraud felt that was too great a risk to play around with that," he said. A grant dated Aug. 14, 1997, came the same day Mr. Scrushy confirmed that HealthSouth was interested in buying pieces of a rival's operations. That day -- the low for the third quarter -- was also the day HealthSouth filed its quarterly report. In January 2002, HealthSouth shares declined sharply after the Justice Department joined a former employee's lawsuit. They hit what turned out to be the low for the quarter on Feb. 4 -- another date for Mr. Scrushy's options. That day, he reassured investors the suit was without merit. |