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They're not making decisions; they're just facilitating a process," Wolf says.

If covered by such a policy, Cohen says, the HR executive needs to decide whether and when to notify an insurer of possible problems, and whether to obtain the insurer's consent in retaining defense counsel, and the extent to which the insurer should be involved in the defense."These early decisions may implicate critical policy terms and sometimes could affect whether, and how much, coverage is available," Cohen says.

Rosenthal, a Philadelphia employment attorney specializing in executive compensation.

"If the backdating had been vetted by the compensation committee and then disclosed through various public filings, there would be no [legal] issue with it.""But if the CEO or CFO are saying, 'We really didn't know the details of this; these options just appeared in our package and we went forward,' and the guys below the HR executive are saying, 'Well, we just implemented the directives of the HR executive,' at that point, the HR executive has already been thrown under the bus," Rosenthal says.

And the murkier realm of spring-loading grants could pose more headaches -- and legal hazards -- for HR because it is so much more ambiguous than backdating.

It all adds up to a loud wake-up call for HR executives, alerting them to the necessity not only of knowing when to sense a legal hazard, but to act proactively to prevent their organizations and executives from being wiped out by the next big wave, or even the last old one.

The good news is that a set of relatively straightforward actions outlined below can be the "ounce of prevention" far outweighing the "pound of cure" after problems have started.

backdating of executive-51backdating of executive-50

An attorney for Jensen, however, has asserted that Reyes, if called to testify on this issue, can disprove the allegation that Jensen "knowingly and intentionally caused Brocade's financial statements to be materially false or misleading." Alleged backdating aside, with the federal entities and shareholder groups focusing intensely on stock-option programs, "HR executives are going to have to be much more attentive to risks," says Jonathan M.

And, as a practical matter, they add, HR executives probably cannot avoid getting caught in the legal cross fire -- if not taking a bullet directly -- should things go awry, even if they weren't intimately involved: Their superiors will probably blame them, and subordinates will disavow them.

Meanwhile, the scope of investigations into the potential abuse of stock-options grants is expanding from the garden-variety undisclosed backdating, to "spring-loading" grants -- timing them to precede upcoming corporate "good news" presently known only to insiders to maximize their value.

If the market price falls below the exercise price, the option has no value.

Indeed, one motivation for backdating options has been to artificially create a lower exercise price to create value in an option contract when the market price of the stock has gone south or has simply languished, instead of rising.




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