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Fourth quarter, 2002.
By mid-2002, employees throughout the Company were being recruited by other companies and morale was low.
Corporate management sought to retain these employees but recognized that other public companies had come under criticism for awarding
“stay” bonuses in the face of enormous losses. At management’s recommendation, the Board determined to reward employees with bonuses
under bonus plans tied to profitability. One plan, the Return to Profitability (“RTP”) bonus, contemplated a one-time bonus payment to every
employee, save 43 top executives, in the first quarter in which the Company achieved pro forma profitability. The 43 executives were eligible
to receive 20% of their share of the RTP bonus in the first quarter in which the Company attained profitability, 40% after the second
consecutive quarter of cumulative profitability, and the remaining 40% upon four quarters of cumulative profitability. In order for the RTP
bonuses to be paid, pro forma profits had to exceed, by at least one dollar, the total cost of the bonus for that quarter. Another plan, the
Restricted Stock Unit (“RSU”) plan, made a significant number of share units available for award by the Board to the same 43 executives in
four installments tied to profitability milestones. Once a milestone was met, the Board had discretion whether to make the award.
Through the first three quarters of 2002, Nortel experienced significant losses, and management reported to the Board that it expected losses
would continue in the fourth quarter. After the initial results for the business units and regions were consolidated, they showed that Nortel
unexpectedly would achieve pro forma profitability in the fourth quarter. Frank Dunn, who had been promoted to CEO in 2001, understood
that profitability had been attained from an operational standpoint but determined that it was unwise to report profitability and pay bonuses in
the fourth quarter because performance for the rest of the year had been poor. He determined that provisions should be taken to cause a loss for
the quarter. Over a two day period late in the closing process, the CFO and the Controller worked with employees in the finance organizations
in the business units, the regions, and in global operations, to identify and record additional provisions totaling more than $175 million. All of
these provisions were recorded “top-side” — that is, by employees in the office of the Controller based on information provided by the
business units, regions and global operations — because of the late date in the closing process on which they were made. Nortel’s results for
the fourth quarter of 2002 turned from an unexpected profit into the loss previously forecasted by management to the Board of Directors.
Neither the CEO, the CFO, nor the Controller advised the Audit Committee and/or the Board of Directors of this concerted provisioning
activity to improperly turn a profit into a loss. Nortel has since determined that many of these provisions were not recorded in compliance with
U.S. GAAP, and has reversed those provisions in the Second Restatement. The loss then reported by Nortel in the fourth quarter meant that no
employee bonuses were paid for that quarter.
First quarter, 2003
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While Nortel had announced publicly that it expected to achieve pro forma profitability in the second quarter of 2003,
Dunn told a number of employees that he intended to achieve profitability one quarter earlier, and he established internal EBT targets for each
business unit and for corporate to reach that goal. At Dunn’s direction, “roadmaps” were developed to show how the targets could be achieved.
These roadmaps made clear that the internal EBT targets for the quarter could only be met through release from the balance sheet of excess
provisions that lacked an accounting trigger in the quarter. At the request of finance management in each business unit, finance employees
identified excess, or “hard,” provisions from the balance sheet, and, together, they determined which provisions to release to close the gap and
meet the internal EBT targets. That release activity was supplemented by releases, directed by the CFO and by the Controller, of excess
corporate provisions that had been identified in the third quarter of 2002 as available for release. Releases of provisions by corporate and by
each business unit and region, including excess provisions, totaling $361M, enabled Nortel to show a consolidated pro forma profit in the first
quarter, notwithstanding that its operations were running at a loss. The Finance Vice Presidents of the business units and two of the three
regions, the Asia Controller, the CFO, the Controller, and the CEO knew, or ought to have known, that U.S. GAAP did not permit the release,
without proper justification, of excess provisions into the income statement. Nortel has since determined that many of these releases in this
quarter were not in accordance with U.S. GAAP, and has reversed those releases in the First and Second Restatements and restated the releases
into proper quarters.
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