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Posted by / 09-Oct-2017 00:29

Backdating contract legal

As expected, the charges focused on backdating stock options by doctoring employment documents, neglecting to record the stock-option expense on the company’s books, and misleading investors.

The cascading litany of alleged charges is not likely to stop with the Brocade case.

the much different – and more financially beneficial – tax rules that apply when issuing “at the money” or "out of the money" stock options.

Additionally, companies can use backdating to produce greater executive incomes without having to report higher expenses to their shareholders, which can lower company earnings and/or cause the company to fall short of earnings predictions and public expectations.

My question is, what language should I use in the contract to cover not just from the signing date but from a date a year ago?

Stating that the contract or agreement will be effective from an earlier "effective date" will, however, only be effective as between or among the parties to the contract or agreement.

It is worth noting that whilst parties signing a contract or agreement may expressly state that the contract or agreement is effective from a date in the past, the parties should not "back-date" the date of execution (for example, sign the contract or agreement today and but insert an earlier date as the date of the document, thereby making it seem as if it was signed on some earlier date).

This could run the risk of civil and/or criminal sanctions in a number of jurisdictions (for example, depending on, among other things, the nature and subject matter of the contract or agreement, false accounting or false statements by directors, or even conspiracy to defraud).

All you can do at this point is prevent disclosures in the future.

So your goal needs to be to get them to sign an NDA asap, rather than raising questions in their mind.

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It will not affect those parties' obligations under the terms of the contract or agreement with regard to third parties who are not parties to the agreement.