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In announcing the results of its own inquiry, the SEC did not give Marvell the credit granted other companies in the options scandal for cooperating [with the SEC’s investigation] or [for] cleaning up.

At the time of the announcement, the co-acting regional director of the SEC’s San Francisco office stated, among other things, that [the SEC] did not believe that the [lack of] cooperation and remediation [shown by Marvell] merited a whole lot of credit in terms of giving [Marvell] a break.

Although backdating had not yet been recognized as a problem, the provisions of Sarbanes-Oxley requiring that insiders report the acquisition of securities, including options, within two days of receipt greatly hindered the ability of corporations to backdate options.

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I count no fewer than 38 top executives at 19 high-tech companies that have bit the dust over this stuff.

Another consequence is that the company underrepresents the real nature of an executive’s compensation, perpetuating the myth that options are performance-based incentive compensation.

The backdating problem was first highlighted by Professor Erik Lie of the University of Iowa, who published his initial study in 2004.

That means the company incurs an expense equal to the difference in the share price between the two dates.

Fifty-two companies currently under criminal investigation. Moreover, the company avoids having to expense the options as current compensation, thus increasing earnings in the near term.




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