U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 20003 / February 14, 2007
Accounting and Auditing Enforcement Release No. 2557 / February 14, 2007
SEC v. Ryan Ashley Brant, United States District Court for the Southern District of New York, Civil Action No. 1:07-CV-1075 (DLC) (S.D.N.Y. February 14, 2007)
SEC Settles Options Backdating Case Against Ryan Ashley Brant, Former Chief Executive Officer and Chairman of the Board of Take-Two Interactive Software, Inc.; Relief Includes Injunction, Officer-and-Director Bar and Over $6 Million in Civil Penalties, Disgorgement, and Prejudgment Interest
The Securities and Exchange Commission ("Commission") today simultaneously filed and settled civil charges against Ryan Ashley Brant ("Brant"), formerly the Chief Executive Officer and Chairman of the Board of video and computer game publisher and distributor Take-Two Interactive Software, Inc. ("Take-Two"), alleging that during a seven year period, Brant enriched himself and others by granting undisclosed, "in the money" stock options to himself and to other Take-Two officers and employees.
The Complaint alleges that from 1997 through September 2003, Brant, with the participation and knowledge of senior executives and others at Take-Two, looked back and picked grant dates for the Company's incentive stock options that coincided with dates of historically low annual and quarterly closing prices for Take-Two's common stock, resulting in grants of "in-the-money" options. Brant and others at Take-Two referred to this practice as "pick-a-date" option granting. According to the Complaint, Brant granted options to himself and others at Take-Two without complying with Take Two's stock option plans and, in virtually all instances, without the Board or a Committee thereof approving the grant dates or exercise prices. The Complaint alleges that at Brant's direction, Take-Two officers and employees prepared documents falsely indicating that the option grants had been made on earlier dates when Take-Two's stock price had closed lower. From 1997 to September 2003, Brant awarded himself ten backdated option grants, representing a total of approximately 2.1 million shares of Take Two common stock. Brant exercised all those options before resigning from Take Two on October 16, 2006.
The Complaint alleges that because of the undisclosed backdating scheme, Take Two filed with the Commission quarterly and annual reports, proxy statements and registration statements that Brant knew, or was reckless in not knowing, contained materially false and misleading statements concerning the true grant dates and proper exercise prices of stock options, and which misled investors to believe that stock options were granted in accordance with the terms of the applicable stock option plans. According to the Complaint, Take-Two materially understated its compensation expenses and materially overstated its quarterly and annual pre-tax earnings and earnings per share in its financial statements. Take-Two has announced that it must restate historical financial results for multiple years in order to record additional non-cash charges for option-related compensation expenses.
Without admitting or denying the allegations of the Commission's Complaint, Brant consented to the entry of an order: (1) permanently enjoining him from violating Section 17(a) of the Securities Act of 1933, Sections 10(b), 13(b)(5), 14(a), and 16(a) of the Securities Exchange Act of 1934 (Exchange Act) and Exchange Act Rules 10b-5, 13b2-1, 14a-9, and 16a-3, and from aiding and abetting violations of Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act and Exchange Act Rules 12b-20, 13a 1, and 13a 13; (2) permanently barring him from acting as an officer or director; and (3) requiring him to disgorge ill-gotten gains of $4,118,093 with $1,143,513 in prejudgment interest thereon, and to pay a $1,000,000 civil penalty. The settlement is subject to the approval of the United States District Court for the Southern District of New York.
Brant previously settled with the Commission for his alleged role in a massive financial fraud at Take Two in 2000 and 2001. On June 9, 2005, the Commission filed and simultaneously settled civil charges against Take-Two, Brant and other members of senior management in connection with an alleged $60 million video game parking scheme. SEC v. Take-Two Interactive Software, Inc., et al., Civil Action No. 1:05 CV 5443 (DLC) (S.D.N.Y. 2005) (filed June 9, 2005), Litigation Release No. 19260. In that action, Brant was permanently enjoined from violating and/or aiding and abetting violations of the antifraud, reporting, record-keeping, and internal controls provisions of the federal securities laws; barred from serving as an officer or director of any public company for five years; and ordered to pay disgorgement of $2,490,408, prejudgment interest of approximately $613,000, and a civil penalty of $500,000.
Separately, the New York County District Attorney's Office today announced that Brant has pled guilty to felony criminal charges of Falsifying Business Records in the First Degree and agreed to pay $1 million in lieu of fines and forfeiture, which will be distributed to state and local New York authorities.
The Commission's investigation is continuing.