Thursday, October 8, 2009
The SEC today filed a settled civil injunctive action in the United States District Court for the Southern District of California, alleging that Feng “Frank” Xie, a former employee at Document Sciences Corp. (DOCX), engaged in insider trading in DOCX common stock, prior to the announcement on December 27, 2007 that EMC Corp. (“EMC”) would acquire DOCX in an all-cash transaction valued at $85 million, or $14.75 per share.
The Commission’s Complaint alleges the following:
DOCX executives asked Xie in late November 2007 to participate in a meeting with EMC representatives concerning a plan to further extend the pre-existing partnership between EMC and DOCX. DOCX executives asked Xie to compile information about DOCX’s source code and other documents in anticipation of the meeting with EMC. Xie also worked on the project with a due diligence firm hired by EMC.
On December 7, 2007 at a meeting between EMC and DOCX employees in Oakland, Xie made a presentation and answered related questions. After the meeting, Xie asked his DOCX supervisor what would happen if someone were to buy DOCX shares in a time period when they thought something was going to happen to that company. Xie’s supervisor told Xie that would be a bad thing to do, that it could be traced, and that it was prohibited and illegal. As late as December 19, 2007, Xie continued to work with EMC and EMC’s due diligence firm.
Xie began acquiring shares of DOCX common stock prior to the December 7th meeting, while preparing due diligence materials for EMC. These initial purchases of 6,892 shares were made at prices ranging from $8.39 to $8.68. Despite the warning from his supervisor on December 7th, Xie continued to acquire DOCX common stock up to the day before the merger announcement, purchasing an additional 3,607 shares. In total, between December 3, 2007 and December 26, 2007, Xie purchased 10,499 DOCX common shares for prices ranging from $8.10 to $8.81.
Under terms of the proposed settlement, Xie has consented, without admitting or denying the allegations of the Commission’s Complaint, to the entry of a final judgment permanently enjoining him from violating the antifraud provisions of the Securities Exchange Act of 1934, specifically Section 10(b) and Rule 10b-5 thereunder. As part of the proposed settlement, Xie also has agreed to pay disgorgement of $62,050.25, prejudgment interest of $5,297.25, and a civil penalty of $62,050.25. The settlement remains subject to the approval of the U.S. District Court for the Southern District of California.