Wayne M. Carlin (WC-2114)
UNITED STATES DISTRICT COURT
Securities and Exchange Commission,
Civil Action No.
Plaintiff Securities and Exchange Commission ("Commission"), for its complaint against defendant Robert Korkuc ("Korkuc"), alleges as follows:
1. From 1998 through 2002, defendant Korkuc engaged in a fraudulent scheme that inflated the reported financial results of Symbol Technologies, Inc. ("Symbol"), a publicly traded manufacturer of bar code scanners and related information technology. Korkuc and others rigged the results that Symbol reported in press releases and periodic reports filed with the Commission by manipulating millions of dollars in revenue, net income and other measures of financial performance while Korkuc was Director of Corporate Accounting and then Chief Accounting Officer.
2. Among other fraudulent accounting practices, Korkuc and others manipulated reserves and made other improper adjustments to Symbol's raw financial data to conform the reported results to market expectations. Korkuc made or oversaw dozens of fraudulent entries on Symbol's accounting records that boosted net income and otherwise distorted the results by tens of millions of dollars. Throughout the relevant period, Korkuc and others prepared schedules, known within Symbol as "Tango sheets," that compared each quarter's raw consolidated results to management's forecasts. The Tango sheets included proposed adjustments to reserves and other items that would eliminate shortfalls and otherwise enhance the reported results according to market expectations. Korkuc distributed the Tango sheets to members of senior management and then adjusted the raw results according to their instructions. These adjustments lacked proper support and grossly violated generally accepted accounting principles ("GAAP").
3. When making these improper "topside" adjustments, Korkuc knew that the raw results were already inflated because of fraudulent revenue recognition practices and similar misconduct. Korkuc played a role in some of these other fraudulent practices, including paying resellers to secure their assistance in Symbol's channel stuffing schemes and recognizing sales revenue before the product was even shipped. Korkuc also played a role in efforts to perpetuate and conceal the fraud. He was involved in obtaining phony "bill and hold" letters to disguise premature revenue recognition, reclassifying past due trade receivables into undisclosed notes receivable to hide the adverse effects of channel stuffing on cash collection, and making fictitious general ledger entries to obscure earlier Tango sheet adjustments.
4. By virtue of the foregoing conduct, Korkuc, directly or indirectly, singly or in concert, has engaged in acts, practices, transactions and courses of business that constitute violations of Section 17(a) of the Securities Act of 1933 ("Securities Act"), 15 U.S.C. § 77q(a), Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. §§ 78j(b), 78m(b)(5), and Rules 10b-5, 13b2-1 and 13b2-2, 17 C.F.R. §§ 240.10b-5, 240.13b2-1, 240.13b2-2; and Korkuc is also liable pursuant to Section 20(e) of the Exchange Act, 15 U.S.C. § 78t(e), for aiding and abetting Symbol's violations of Sections 13(a) and 13(b)(2) of the Exchange Act, 15 U.S.C. §§ 78m(a), 78m(b)(2), and Rules 12b-20, 13a-1 and 13a-13, 17 C.F.R. §§ 240.12b-20, 240.13a-1, 240.13a-13.
5. Unless Korkuc is permanently restrained and enjoined, he will again engage in the acts, practices, transactions and courses of business set forth in this complaint and in acts, practices, transactions and courses of business of similar type and object.
6. The Commission brings this action pursuant to authority conferred by Section 20(b) of the Securities Act, 15 U.S.C. § 77t(b), and Section 21(d)(1) of the Exchange Act, 15 U.S.C. § 78u(d)(1), and seeks to restrain and enjoin Korkuc permanently from engaging in the acts, practices, transactions and courses of business alleged herein. The Commission also seeks an order: (a) requiring Korkuc to disgorge the ill-gotten gains he received as a result of the violations for which he is liable, and to pay prejudgment interest on that amount; (b) requiring Korkuc to pay civil money penalties pursuant to Section 20(d) of the Securities Act, 15 U.S.C. § 77t(d), and Section 21(d)(3) of the Exchange Act, 15 U.S.C. § 78u(d)(3); and (c) prohibiting Korkuc, pursuant to Section 20(e) of the Securities Act, 15 U.S.C. § 77t(e), and Section 21(d)(2) of the Exchange Act, 15 U.S.C. § 78u(d)(2), from acting as an officer or director of a public company.
7. This Court has jurisdiction over this action pursuant to Sections 20(d) and 22(a) of the Securities Act, 15 U.S.C. §§ 77t(d), 77v(a), and Sections 21(d) and 27 of the Exchange Act, 15 U.S.C. §§ 78u(d), 78aa.
8. Korkuc, directly and indirectly, has made use of the means or instrumentalities of, or the means or instruments of transportation or communication in, interstate commerce, or of the mails, or of the facilities of a national securities exchange, in connection with the transactions, acts, practices and courses of business alleged herein. Some of these transactions, acts, practices and courses of business occurred in the Eastern District of New York.
9. Korkuc, age 40, resides in Suffolk County, New York and was employed at Symbol during the time of the events alleged herein. Korkuc was a Vice President and Symbol's Chief Accounting Officer from July 2000 until March 2003, when the company announced his resignation. He continued to work at Symbol as a consultant following the announcement. From July 1997 until July 2000, he was Symbol's Director of Corporate Accounting. Korkuc is a Certified Public Accountant licensed by the State of New York. He obtained his license in 1988.
10. During the time of the transactions and events alleged herein, Symbol was, and remains: (a) a Delaware corporation with principal offices in Holtsville, New York; (b) engaged in the design, manufacture, marketing and servicing of information management systems using bar code scanners and similar devices; and (c) a public company whose common stock is traded on the New York Stock Exchange and registered with the Commission pursuant to Section 12(b) of the Exchange Act.
11. Korkuc was a senior member of Symbol's accounting department throughout the relevant period. Korkuc attended and, as chief accounting officer, led closing meetings where each division's results were reviewed, along with so-called "risks" and "opportunities" at the consolidated level. After quarterly closing meetings, Korkuc prepared consolidated financial reports showing the raw results and proposing "topside" adjustments based on the accounting "risks" and "opportunities" presented each quarter. Korkuc then distributed these documents, described in greater detail below, to members of senior management and attended meetings at which senior management made decisions about recording topside adjustments. He or his staff then posted the necessary journal entries to the general ledger.
12. In addition to overseeing the creation of Symbol's financial statements, Korkuc participated in preparing narrative portions of Symbol's periodic reports. He signed Symbol's annual reports on Form 10-K for 2000 and 2001 and the representation letters that management provided to Symbol's outside accounting firm with regard to its audits of the financial statements included in those reports. Korkuc also signed similar representation letters that management provided to the accounting firm in connection with its interim reviews for the first three quarters of 2001.
13. During the relevant period, Symbol was a "numbers driven" company obsessed with meeting financial projections. Before his departure in 2002, Symbol's president established ambitious financial performance targets that either drove or mirrored Wall Street expectations, and he aggressively enforced those targets. Management's primary function was to make sure that the company's reported results matched those figures, and there was often a mad scramble at the end of financial reporting periods to "hit the number." The accounting staff was not immune from these pressures.
14. Korkuc, together with others, engaged in a fraudulent scheme to inflate revenue, earnings and other measures of financial performance in order to create the false appearance that Symbol had met or exceeded its financial projections. The scheme took place during Korkuc's tenure as director of corporate accounting and then chief accounting officer, resulting in material misstatements of revenue, earnings and other financial information reported by Symbol from at least 1998 through 2002. Korkuc and others, with blatant disregard for GAAP and their financial reporting obligations, used a variety of fraudulent practices to align Symbol's reported financial results with market expectations.
15. Korkuc played a central role in Symbol's fraudulent use of topside adjustments and excess "cookie jar" reserves to manipulate financial results to match projections.
16. One of the consolidated financial reports that Korkuc prepared for senior management each quarter was known within Symbol as a "Tango sheet." In the Tango sheets, Korkuc not only consolidated the raw results, but he also compared those results to the forecast that management had provided to the board of directors and identified adjustments that would conform the raw numbers to the forecast, which reflected market expectations. Members of senior management authorized those adjustments and, in some cases, directed Korkuc to make other, more advantageous adjustments without regard to GAAP or other financial reporting requirements. The nature, size and timing of Tango sheet adjustments instead depended on the variance between the raw results and the forecast and the opportunities for manipulation that Korkuc and the others were able to identify.
17. As a result of these fraudulent topside adjustments, Symbol understated expenses and overstated revenue, earnings and other financial data in periodic reports and press releases. Despite their carefully calibrated impact on reported results, Symbol did not disclose the Tango sheet adjustments to the public in the relevant periodic reports or press releases.
18. The undisclosed topside adjustments made and approved by Korkuc and other members of management through the Tango sheet process included the following manipulations:
(a) Symbol maintained a "credit memo" reserve purportedly to account for the impact of anticipated product returns from customers. Increases to this reserve decreased reported revenue by a corresponding amount. Symbol did not calculate the credit memo reserve in accordance with GAAP, but instead senior management dictated what the reserve would be to achieve particular revenue targets. The Tango sheet adjustments to the reserve were also based on the desired "optics" of Symbol's financial statement, and not on accounting principles. For example, in the first quarter of 2000, Korkuc initially proposed to increase the credit memo reserve by $13.7 million, but increased it by only $10.5 million so that Symbol could report $320 million in revenue, the amount dictated by senior management. The Tango Sheet for that quarter explained this entry as follows: "[I]ncrease credit memo accrual $10.5 M @ 42.5% to achieve revenue of $320M."
(b) In the first quarter of 2002, Korkuc reduced the credit memo reserve by $2 million because a member of senior management directed him to make Symbol's reported revenue figure "begin with a three." Without this adjustment, Symbol's reported revenue that quarter would have been $299.3 million before extraordinary charges. As a result of this adjustment, Symbol reported $301.3 million in revenue.
(c) Whenever Korkuc increased the credit memo reserve, he also had to account for the impact on cost of sales and inventory, which adversely affected gross profit. As discussed above, in the first quarter of 2000, Korkuc increased the credit memo reserve by only $10.5 million so that revenue would match the $320 million target. With a $10.5 million increase in the reserve, the associated reduction in gross profit should have been $4.5 million. However, Korkuc made a second fraudulent adjustment to the credit memo reserve that reduced the adverse impact on gross profit from $4.5 million to $1.7 million. This time he decreased the credit memo reserve by $6.5 million and thereby generated $2.8 million in gross profit, but he deliberately did so in a way that left the revenue line intact at the desired $320 million. The Tango sheet described this second adjustment as "us[ing] $6.5 million credit memo accrual at 42.5% to create $2.8M in gross margin." This adjustment had no basis in accounting and was done solely to make it appear that Symbol had achieved its gross profit forecast, but without unduly inflating the revenue figure.
(d) The recovery value of inventory, stated in percentage terms, determined the impact of the credit reserve on gross profit and net income. In the second quarter of 2000, a member of senior management directed Korkuc to increase the recovery value from 58% to 65% in order to reduce cost of sales, and thereby inflate gross profit and net income, by $1.84 million. This entry alone boosted net income for the quarter by 3.4%.
(e) During 2001, a Symbol officer and other employees created an excessive reserve of $10 million for obsolete inventory in a gross inventory account maintained on the books of Symbol's operations division. This $10 million cushion was a "cookie jar" reserve designed for use when the operations division failed to meet its quarterly forecast, and it exceeded any reasonable estimate of Symbol's exposure for obsolete inventory. In the Tango sheet process for the fourth quarter of 2001, members of senior management authorized Korkuc to release the excess $10 million into earnings in the fourth quarter of 2001. By making this and other adjustments that quarter, Symbol reported net income of $13.4 million rather than a $2.4 million loss, and hit the quarterly forecast right on the nose. The reversal of this "cookie jar" inventory reserve and the favorable impact on reported earnings were not disclosed to the public.
(f) Some of Symbol's senior executives participated in a Senior Executive Retirement Plan ("SERP"), to which Symbol made annual contributions for their benefit. In accordance with GAAP, Symbol created reserves to accrue for the expenses associated with the annual SERP contributions. In 1999 and 2000, some of the senior executives elected, or purported to elect, to swap their SERP benefits for a "split" life insurance policy. In the event of a swap, Symbol was no longer obligated to make the SERP contributions, leaving millions of dollars in unnecessary reserves that could be released into earnings. Rather than establish a regular schedule for the release of these reserves as GAAP required, Korkuc and others used the unneeded SERP reserves as "opportunities" to boost reported earnings when the raw results fell short of the quarterly forecast. From the third quarter of 1999 through the third quarter of 2001, Symbol released a total of over $7.5 million from the SERP reserves into earnings in five different quarters without disclosing the adjustments in its Forms 10-Q for those quarters.
(g) In the first quarter of 2000, Symbol paid bonuses to its employees for work done in 1999. As a result, Symbol incurred an obligation to pay $3.5 million in FICA insurance in the first quarter of 2000 and, under GAAP, was required to recognize this $3.5 million expense in that quarter. Korkuc and other participants in the Tango process instead deferred the entire $3.5 million FICA expense to a later reporting period in order to boost Symbol's net income in the first quarter of 2000. This adjustment alone inflated net income by 7.5 percent that quarter.
(h) By the end of 2000, Symbol owed, and needed to accrue for, about $21 million in ordinary performance bonuses based on achievement of operating targets and about $5 million in special nonrecurring bonuses related to a fourth quarter corporate acquisition. Under GAAP, the performance bonuses constituted operating expenses. To reduce the adverse impact of the performance bonuses on reported operating expenses, Korkuc made entries that reclassified $7 million of the operating bonuses as acquisition bonuses and included that amount in the $113.2 million nonrecurring acquisition charge that Symbol recorded in the fourth quarter of 2000. The $7 million reduction in operating expenses inflated fourth quarter net earnings, before nonrecurring charges, by nearly 20%. Symbol touted the inflated amount in its earnings release for that quarter.
(i) Korkuc also reclassified millions of dollars of expenses from cost of sales to operating expenses to manipulate the gross profit margin that management reported to the board and to analysts. By artificially boosting the gross profit margin in this manner, management was able to conceal that a drop in prices due to adverse business conditions and phony "channel stuffing" transactions with resellers had eroded sales profits.
19. Korkuc was also involved in Symbol's fraudulent practice of recognizing revenue on purchase orders that were processed in one quarter but not shipped until the following quarter.
20. From September 1999 through March 2001, Korkuc and others accrued revenue on orders when they attained "post goods issued" ("PGI") status on the automated accounting system, which indicated that the order was being processed by the factory but had not yet been shipped. Because the shipments did not occur until the next quarter, the practice of accruing revenue based on an order's PGI status prematurely added millions of dollars of revenue to Symbol's reported financial results. Improper PGI revenue ranged from $4.5 to $6.9 million per quarter.
21. In each relevant quarter, a member of the sales finance department downloaded a report from the automated accounting system listing the orders in the PGI category. Korkuc or a member of the sales finance department then made manual entries to the general ledger recording revenue in the total amount of the orders. This practice violated both GAAP and Symbol's stated revenue recognition policy, which provided that sales revenue was recognized when goods were shipped.
22. Korkuc and the others knew that this practice was improper and later tried to conceal it by obtaining phony "bill and hold" letters to make PGI revenue falsely appear to be the result of legitimate "bill and hold" transactions. In a true "bill and hold" transaction, revenue may be recognized before shipment occurs if, among other requirements, the purchaser asks the seller in writing to hold the product temporarily for genuine business reasons and agrees to take title, and pay for the product, before shipment.
23. After the quarter ended March 30, 2001, Korkuc directed another employee to obtain letters reciting "bill and hold" terms from the purchasers whose orders were included in that quarter's PGI download. By then, Symbol had already shipped the goods. Sales personnel told the purchasers that Symbol needed the letters for its auditors and asked the purchasers to back date the letters to March 2001. Symbol eventually received at least five such letters. Although each letter bore a March 2001 date, the purchasers did not sign and send the letters to Symbol until months later.
24. To help meet senior management's revenue targets, Symbol employees also engineered fraudulent "channel stuffing" transactions with resellers, including what were known as "candy" deals. In these three-way transactions, Symbol paid off resellers to "purchase" large volumes of Symbol product from another distributor at the end of a quarter so that Symbol could then induce that distributor to place new orders to meet this illusory demand. This fraudulent scheme had the following essential components.
25. Sales personnel first arranged for a reseller to order a specified volume of Symbol product from a distributor. In exchange, sales personnel agreed that Symbol would cover the cost of the reseller's purchase from the distributor, which included a substantial markup, and pay the reseller an additional amount -- the "candy" -- equal to 1% of the purchase price. Once the reseller placed its purchase order with the distributor, sales personnel solicited an order from the distributor to fill the reseller's order or restock the distributor's supply. The price that Symbol charged the distributor was lower than the cost of repurchasing the product from the reseller, which included both the distributor's mark-up and the "candy" payment.
26. During 2000, sales personnel arranged "candy" transactions in which the improper payments to the resellers totaled approximately $15 million. Symbol's recognition of revenue on the corresponding purchase orders placed by the distributors was also fraudulent and misleading. Symbol did not actually make any money and, in fact, lost money on these sham three-way transactions. Moreover, Symbol did not disclose that it generated this revenue by buying back its own products at a higher price and paying a bribe.
27. Not only was Korkuc aware of Symbol's fraudulent channel stuffing transactions when he signed the 2000 and 2001 Forms 10-K and management's representation letters, but he also played an important role in the "candy" transactions. In one instance, Korkuc authorized two $1.9 million payments to resellers. On a later occasion, the head of the accounts payable department made Korkuc aware of simultaneous requests for multiple checks to the same two resellers totaling $8 million and conveyed her concerns about the propriety of the requests. Korkuc nevertheless allowed the accounts payable department to issue the checks. On both occasions, Korkuc knew that the purpose of the payments was improper.
28. Symbol's channel stuffing practices substantially increased the age of past due accounts receivable and, as a result, caused Symbol's "days sales outstanding" ("DSO") figure to balloon. A growing DSO figure is often a telltale sign that a company's receivables are impaired due to channel stuffing or other revenue recognition issues. Symbol's DSO figures increased steadily in 2000 and then spiked dramatically in 2001, peaking at 119 days in the second quarter.
29. In the third quarter of 2001, Symbol's DSO figure dropped to 89 days. Korkuc and others engineered this reduction by artificially reducing the amount of outstanding accounts receivable, principally through the undisclosed reclassification of trade receivables from channel partners into notes receivable. At a series of meetings in June 2001, management decided to reduce the DSO figure by requiring channel partners with large outstanding receivables to sign notes for those amounts. After sales personnel and others secured the notes, Korkuc made or directed a reclassification entry to the general ledger converting over $30 million of trade receivables into notes receivable, which are not included in the DSO calculation. Korkuc knew that the purpose of the reclassification was to manipulate Symbol's DSO figure.
30. In a conference call with analysts following the announcement of Symbol's results for the third quarter of 2001, Symbol's chief executive officer at the time touted the supposed reduction in DSO. Symbol did not disclose the reclassification of trade receivables into notes receivable in the conference call or the Form 10-Q for that quarter.
31. In the spring of 2002, Symbol hired new outside counsel to conduct a second internal investigation into the company's financial reporting practices at the request of the Commission's staff. Although Korkuc eventually cooperated with the new outside counsel, he initially helped conceal important elements of the fraud from company counsel, the government and others. The Commission's investigation and Symbol's first internal investigation both began in 2001.
32. Korkuc knew that the Tango sheets contained incriminating evidence, yet he did not provide his copies to counsel until several months into the second internal investigation. A member of senior management had previously instructed Korkuc to collect and destroy all the Tango sheets, and to instruct others to do the same. Korkuc retained his own copies of several Tango sheets, but he relayed these instructions to other employees involved in the Tango process, resulting in the destruction of some of the Tango sheets.
33. In June 2002, Korkuc directed a subordinate to make a series of offsetting entries to the general ledger that had no legitimate purpose. These entries had no net effect on Symbol's financial statements, but they made it more difficult to detect and assess the impact of prior Tango sheet entries.
34. In 2002, Korkuc and another executive sanitized key portions of schedules that an employee had prepared to assist investigators. The schedules reflected a reconciliation analysis of manual adjustments to revenue in 2000 and 2001, and included the improper entries through which Symbol recognized "PGI" revenue. At the direction of Korkuc and the other executive, the employee created revised summaries of the schedules in which the PGI entries did not appear at all or were falsely attributed to "bill and hold" transactions.
35. On November 30, 2000, Symbol completed its acquisition of Telxon Corporation ("Telxon"), its primary domestic competitor. In anticipation of that transaction, Symbol filed with the Commission a registration statement on Form S-4 in August 2000 to register nearly twelve million shares of Symbol stock to be issued to Telxon shareholders in the merger. The Form S-4, as well as two later amendments, incorporated by reference Symbol's report on Form 10-K for 1999 and its reports on Form 10-Q for the subsequent quarters. These periodic reports were materially false and misleading as a result of the fraudulent practices described above. Korkuc signed the three registration statements.
36. Korkuc also signed two registration statements on Form S-8 that Symbol used to register a total of 17 million shares of Symbol stock in conjunction with executive and employee stock option plans. The first Form S-8, filed in November 2001, incorporated by reference the 2000 Form 10-K and the Forms 10-Q for the quarters ended March 31, June 30, and September 30, 2001. The second Form S-8, filed in June 2002, incorporated the 2001 Form 10-K and March 31, 2002 Form 10-Q. These periodic reports were materially false and misleading as a result of the fraudulent practices described above.
37. Korkuc sold Symbol stock while engaging in the scheme to manipulate Symbol's reported financial results. In 1999 and 2000, Korkuc sold shares of Symbol stock that he had acquired by exercising employee stock options priced below the inflated market price.
38. During and with respect to the time in which Korkuc served as Symbol's Director of Corporate Accounting and then Chief Accounting Officer, Symbol distributed information concerning its quarterly and annual financial results to the public that was materially false and misleading.
39. Symbol issued press releases announcing its purported financial results for 1998, 1999, 2000 and 2001, and for interim periods within those years and within 2002. In many of these press releases, Symbol touted, among other things, dramatic increases in revenue and net income. Symbol also filed periodic reports with the Commission on Form 10-K for the foregoing fiscal years and on Form 10-Q for the foregoing interim periods. Due to the conduct of Korkuc and others, the revenue, net income and other amounts contained in the foregoing press releases and periodic reports were materially misstated.
40. As outlined in a series of public disclosures by Symbol beginning in October 2002, Symbol is in the process of restating previously reported financial results. The restatement will include changes in reserves and significant reductions in revenue and net income during the time that Korkuc engaged in fraudulent accounting practices at Symbol. According to an April 2003 press release, Symbol's planned restatement will cover 1998 through 2002.
41. Symbol's public disclosures about the need for a restatement arise from the internal investigation it began in 2002 at the request of the Commission's staff.
42. The Commission realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 41.
43. Korkuc, directly or indirectly, singly or in concert, by use of the means or instruments of transportation or communication in, or the means or instrumentalities of, interstate commerce, or by the use of the mails, or of the facilities of a national securities exchange, in the offer or sale and in connection with the purchase or sale of Symbol securities, knowingly or recklessly, has: (a) employed devices, schemes and artifices to defraud; (b) obtained money or property by means of, or otherwise made, untrue statements of material fact, or has omitted to state material facts necessary in order to make statements made, in light of the circumstances under which they were made, not misleading; and/or (c) engaged in acts, transactions, practices and courses of business which operated or would have operated as a fraud or deceit upon purchasers of Symbol securities and upon other persons.
44. As part and in furtherance of the violative conduct, Korkuc, directly or indirectly, singly or in concert, knowingly or recklessly, engaged in a fraudulent scheme to inflate Symbol's reported financial results through the manipulation of reserve accounts and accounts receivable, the fabrication of sales revenue and other improper practices. As described above, Korkuc participated in the process of making "Tango sheet" adjustments and other improper accounting entries on Symbol's books and records to conform Symbol's reported financial results to market expectations. Korkuc also signed Symbol's annual reports on Form 10-K for 2000 and 2001.
45. As part and in furtherance of the violative conduct, Symbol issued press releases and filed with the Commission the periodic reports described in paragraph 39 above. Due to the improper "Tango sheet" adjustments and other fraudulent practices, these documents contained financial statements that materially overstated Symbol's revenue and net income for the subject reporting periods and other material misstatements concerning Symbol's financial performance. As a result, the press releases and periodic reports described above in paragraph 39, including the Forms 10-K signed by Korkuc, were materially false and misleading.
46. Korkuc knew or was reckless in not knowing that because of his fraudulent conduct and the fraudulent conduct of others, the press releases and periodic reports described above in paragraph 39, were materially false and misleading.
47. As described above, a number of these materially false and misleading periodic reports were incorporated by reference in registration statements, including amendments thereto, that were signed by Korkuc and filed with the Commission ("Registration Statements"). As a result, the Registration Statements were also materially false and misleading.
48. Korkuc knew, or was reckless in not knowing, that the Registration Statements were materially false and misleading.
49. By reason of the foregoing, Korkuc, singly or in concert, directly or indirectly, has violated, and unless enjoined will again violate, Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a), Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5.
50. The Commission realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 49.
51. Symbol failed to file with the Commission, in accordance with the rules and regulations prescribed by the Commission, such annual and quarterly reports as the Commission has prescribed and Symbol failed to include, in addition to the information expressly required to be stated in such reports, such further material information as was necessary to make the statements made therein, in light of the circumstances in which they are made, not misleading, in violation of Section 13(a) of the Exchange Act, 15 U.S.C. § 78m(a), and Rules 12b-20, 13a-1 and 13a-13, 17 C.F.R. §§ 240.12b-20, 240.13a-1, 240.13a-13. As alleged above, Symbol's annual and quarterly reports described above in paragraph 39 were false and misleading because, among other things, they included financial statements that overstated Symbol's revenue and net income and other material misstatements concerning Symbol's financial performance.
52. Korkuc knowingly or recklessly, directly, or indirectly, singly or in concert, engaged in fraudulent practices resulting in: (a) material overstatements of Symbol's revenue and net income on its books and records and in financial statements included in the periodic reports identified above; and (b) other material misstatements in those periodic reports.
53. By reason of the foregoing, Korkuc aided and abetted Symbol's violations of Section 13(a) of the Exchange Act, 15 U.S.C. § 78m(a), and Rules 12b-20, 13a-1 and 13a-13, 17 C.F.R. §§ 240.12b-20, 240.13a-1, 240.13a-13; and unless he is enjoined, Korkuc will again aid and abet violations of Section 13(a) of the Exchange Act, 15 U.S.C. § 78m(a), and Rules 12b-20, 13a-1 and 13a-13, 17 C.F.R. §§ 240.12b-20, 240.13a-1, 240.13a-13.
54. The Commission realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 53.
55. Symbol failed to:
a. make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflected the transactions and dispositions of its assets; and
b. devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
i. transactions were executed in accordance with management's general or specific authorization;
ii. transactions were recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and to maintain accountability for assets;
iii. access to assets was permitted only in accordance with management's general or specific authorization; and
iv. the recorded accountability for assets was compared with the existing assets at reasonable intervals and appropriate action was taken with respect to any differences,
in violation of Section 13(b)(2) of the Exchange Act, 15 U.S.C § 78m(b)(2). As alleged above, Symbol made fraudulent topside adjustments and other improper accounting entries on its books and records, and Symbol's internal accounting controls were insufficient to reasonably assure that its annual and quarterly financial statements were prepared in conformity with GAAP.
56. Korkuc knowingly or recklessly, directly or indirectly, singly or in concert, engaged in fraudulent practices resulting in material misstatements of Symbol's revenue, net income and other items on its books and records and in financial statements included in the periodic reports identified above in paragraph 39.
57. By reason of the foregoing, Korkuc aided and abetted Symbol's violations of Section 13(b)(2) of the Exchange Act, 15 U.S.C. § 78m(b)(2); and unless he is enjoined, Korkuc will again aid and abet, violations of Section 13(b)(2) of the Exchange Act, 15 U.S.C. § 78m(b)(2).
58. The Commission realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 57.
59. Korkuc engaged in fraudulent practices in the course of which he knowingly circumvented or knowingly failed to implement a system of internal accounting controls and knowingly falsified, directly or indirectly, or caused to be falsified books, records and accounts of Symbol that were subject to Section 13(b)(2)(A) of the Exchange Act, 15 U.S.C. § 78m(b)(2)(A). As alleged above, Korkuc participated in the process of making fraudulent "Tango sheet" adjustments and other improper accounting entries on Symbol's books and records.
60. By reason of the foregoing, Korkuc has violated, and unless enjoined will again violate, Section 13(b)(5) of the Exchange Act, 15 U.S.C. § 78m(b)(5), and Rule 13b2-1, 17 C.F.R. § 240.13b2-1.
61. The Commission realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 60 above.
62. Korkuc directly or indirectly made or caused to be made materially false or misleading statements, or omitted to state or caused another person to omit to state material facts necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading to an accountant, in connection with: (i) audits and examinations of the financial statements of Symbol; and (ii) the preparation and filing by Symbol of reports required to be filed with the Commission.
63. In his capacity as chief accounting officer, Korkuc made materially false and misleading statements to accountants in connection with audits of Symbol's annual financial statements for 2000 and 2001 and quarterly reviews of Symbol's interim financial statements during 2001. Among other things, Korkuc signed materially false and misleading representation letters that management provided to Symbol's accountants with respect to those engagements.
64. By reason of the foregoing, Korkuc has violated, and unless enjoined will again violate, Exchange Act Rule 13b2-2, 17 C.F.R. § 240.13b2-2.
WHEREFORE, the Commission respectfully requests a Final Judgment:
Permanently enjoining Korkuc, his agents, servants, employees and attorneys and all persons in active concert or participation with him who receive actual notice of the injunction by personal service or otherwise, and each of them, from violating Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a), Sections 10(b) and 13(b)(5) of the Exchange Act, 15 U.S.C. §§ 78j(b), 78m(b)(5), and Exchange Act Rules 10b-5, 13b2-1 and 13b2-2, 17 C.F.R. §§ 240.10b-5, 240.13b2-1, 240.13b2-2.
Permanently enjoining Korkuc, his agents, servants, employees and attorneys and all persons in active concert or participation with them who receive actual notice of the injunction by personal service or otherwise, and each of them, from aiding and abetting violations of Sections 13(a) and 13(b)(2) of the Exchange Act, 15 U.S.C. §§ 78m(a), 78m(b)(2), and Exchange Act Rules 12b-20, Rule 13a-1, and 13a-13, 17 C.F.R. §§ 240.12b-20, 240.13a-1, and 240.13a-13.
Ordering Korkuc to disgorge the ill-gotten gains he received as a result of the violations alleged above, and to pay prejudgment interest thereon.
Ordering Korkuc to pay civil money penalties pursuant to 20(d) of the Securities Act, 15 U.S.C. § 77t(d), and Section 21(d)(3) of the Exchange Act, 15 U.S.C. § 78u(d)(3).
Prohibiting Korkuc pursuant to Section 20(e) of the Securities Act, 15 U.S.C. § 77t(e), and Section 21(d)(2) of the Exchange Act, 15 U.S.C. § 78u(d)(2), from acting as an officer or director of any issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act, 15 U.S.C. § 78l, or that is required to file reports pursuant to Section 15(d) of the Exchange Act, 15 U.S.C. § 78o(d).
Granting such other and further relief as the Court may deem just and proper.
Dated: New York, New York
June 17, 2003
WAYNE M. CARLIN
Northeast Regional Office
Wayne M. Carlin (WC-2114)
Attorney for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
New York, New York 10048
Edwin H. Nordlinger
George N. Stepaniuk
John J. O'Donnell
Craig S. Warkol
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