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Former executives indicted for looting millions from company
NEW YORK -- Former Tyco International chief executive Dennis Kozlowski and former chief financial officer Mark Swartz were indicted Thursday for allegedly using $170 million in company money to throw lavish parties and buy expensive homes, jewelry and art for themselves, and for making $430 million more by selling stock at artificially inflated prices.
The long list of items Kozlowski and Swartz allegedly used company loans -- most later forgiven -- and improper bonuses to buy includes: $12 million worth of art; a $2.5 million home in Boca Raton, Fla., and $9 million more for Boca Raton property; $5 million for property in Nantucket, Mass.; $900,000 for property in Greenwich, Conn.; $240,000 for jewelry from high-end dealer Harry Winston; a $7 million Park Avenue apartment in New York for Kozlowski's wife as part of a divorce settlement; $1 million for a private party for Kozlowski in Sardinia; a $1 million gift in Kozlowski's name to Cambridge University; and expensive cars, yachts and investments in sports teams and other ventures.
The scope of Thursday's indictment dwarfs one filed handed down earlier this year charging Kozlowski with evading more than $1 million in New York sales taxes on art, including works by Renoir and Monet, purchased with company funds.
Former Tyco general counsel Mark Belnick was also indicted Thursday for allegedly falsifying business records to conceal $14 million in interest-free loans he received from the company, which he used to buy two residences in New York and a house in Park City, Utah.
All three pleaded not guilty after a brief court appearance in which they arrived in handcuffs. If convicted, Kozlowski and Swartz face up to 30 years in prison. Belnick faces up to four years.
"Dennis Kozlowski was a recognized business leader and believes that the charges against him are unfounded and unfair," Kozlowski's attorney, Stephen Kaufman, said after the arraignment. Lawyers for Belnick and Swartz also asserted their clients' innocence.
Kept in the dark
Prosecutors on Thursday alleged that Kozlowski and Swartz kept some Tyco board members in the dark about the loans and other payments by having internal auditors report directly to Kozlowski, and co-opted others with improper payments, including $20 million to one director not named in the indictment.
Two other directors also allegedly received payments, although the indictment doesn't make a direct connection between the payments and the alleged theft.
The fresh Tyco charges recall a similar indictment earlier this year alleging that Adelphia Communications Corp. founder John Rigas and his family members treated the company like a personal piggy bank, siphoning over $1 billion from the cable operator and helping drive it into bankruptcy.
Manhattan District Attorney Robert Morgenthau said on Thursday the new Tyco charges indicate that the SEC and prosecutors are working together to punish a wave of alleged corporate wrongdoing that has spooked investors and chilled the markets.
"These guys got away with this for a significant amount of time but they did get caught," he said. "I hope that there are a lot of corporate officials out there who aren't going to sleep so well tonight."
Also Thursday, Tyco filed suit against Kozlowski, seeking hundreds of millions in damages, including repayment of five years' salary, benefits, loans and bonuses and payments made to other employees. The amount includes at least $20 million in personal expenses that, according to the suit, Kozlowski charged to the company. The company has already filed suit against Belnick, accusing him of failing to disclose $35 million in compensation and loans.
Tyco, a conglomerate nominally headquartered in Bermuda but run from Exeter, N.H., and New York, makes an array of products across numerous markets with core businesses in electronics and telecommunications. Once viewed as a mini-General Electric, the firm has seen its share price plunge in recent months following inquiries into Kozlowski and other executives and questions about how the firm accounts for acquisitions. Trading in the stock was halted Thursday morning.
Morgenthau announced the new charges shortly after the U.S. Securities and Exchange Commission filed a companion civil suit against the former executives, saying they failed to disclose millions in loans taken from the company.
The 94-page indictment described Kozlowski as "the boss" and Swartz as "chief of operations" of a criminal enterprise that manipulated Tyco's stock price through false public statements and fraudulent accounting entries. It also says Kozlowski and Swartz "concealed thefts and other wrongdoing by corrupting key employees with lucrative payments to influence their behavior."
Prosecutors also say Kozlowski and others sought to persuade a large securities broker to replace an analyst with an individual whom Kozlowski viewed as more friendly to Tyco. Kozlowski and the replacement analyst then allegedly ``exchanged presents worth thousands of dollars."
At Morgenthau's request, a judge on Thursday signed a temporary order freezing $600 million in assets belonging to Kozlowski and Swartz. In its civil suit, the SEC is asking that Kozlowski, Swartz and Belnick repay all money received as result of the alleged fraud including loans, salary, bonuses, stock options and stock losses avoided. "Kozlowski, Swartz and Belnick treated Tyco as their private bank taking out hundreds of millions of dollars of loans and compensation without ever telling investors," SEC enforcement director Stephen Cutler said.
Morgenthau said he decided not to charge Tyco as a corporation because he felt it would be unfair to punish the firm's 270,000 employees for the deeds of an apparent few. But both Morgenthau and SEC officials said the investigation was ongoing and could lead to new charges.
The theft charges allege that Swartz and Kozlowski abused two corporate loan programs--one intended to help executives pay taxes on stock grants, the other to help them relocate to the company's New York office. While the loans were being made, Swartz and Kozlowski allegedly signed sworn documents saying they had no indebtedness to the company over $60,000.
Swartz and Kozlowski are also charged with fraudulently transferring $55 million from Tyco's sale of its ADT Automotive business to their own accounts.
Prosecutors also say Kozlowski committed fraud by publicly expressing confidence in Tyco's future while selling thousands of shares at prices inflated by the company's overstatement of profits, making $280 million in the process. Swartz allegedly sold over $2 million shares worth $125 million.