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EXHIBIT 99.6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TYCO INTERNATIONAL LTD.,
A BERMUDA CORPORATION, NO. 02-CV-4633
PLAINTIFF,
V. COMPLAINT
FRANK E. WALSH, JR.,
DEFENDANT.
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Plaintiff Tyco International Ltd. ("Tyco"), by its undersigned counsel
Boies, Schiller & Flexner LLP, as and for its Complaint against Frank E. Walsh,
Jr. ("Walsh"), alleges as follows, with knowledge of its own actions and upon
information and belief as to all others matters:
NATURE OF THE ACTION
1. Tyco brings this action against its former Lead Director for
restitution, an accounting, unjust enrichment, and damages resulting from
Walsh's breaches of his own duties to Tyco and from Walsh's inducing breaches of
the duties of other Tyco fiduciaries.
2. As Tyco's designated "Lead Director", Walsh served as the primary
liaison between Tyco's management and the Company's independent directors. Walsh
also served as a member of the Board's Corporate Governance and Nominating
Committee, and previously served on the Compensation Committee, responsible for
determining the compensation and benefits of Tyco's management.
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3. As a result of his positions, Walsh owed Tyco fiduciary duties and
was obligated to use the power of his positions to advance the interests of the
Company and its shareholders, and not for person gain.
4. Walsh's breaches of duty include promoting the acquisition of CIT
by Tyco without informing the Board of Directors that he intended to profit
personally from that acquisition through a fee; soliciting and receiving from
L. Dennis Kozlowski, Tyco's former Chairman and CEO, $20 million as a purported
fee, in violation of applicable law and the Company's Bye-Laws, without Board
approval; and refusing to return those funds when his unauthorized receipt of
them was disclosed to the Board.
THE PARTIES
5. Plaintiff Tyco International Ltd. is a Bermuda corporation whose
principal United States subsidiary has its principal place of business in
Exeter, New Hampshire and offices in New York City and Boca Raton, Florida.
6. Defendant Frank E. Walsh, Jr., is a citizen and resident of New
Jersey and was at the time of the events set forth herein a member of the Board
of Directors of Tyco. Walsh attended meetings regarding Tyco's business in New
York.
JURISDICTION AND VENUE
7. The Court has jurisdiction over this action pursuant to its
general diversity jurisdiction, 28 U.S.C. Section 1332(a)(2). The amount in
controversy, exclusive of interest and costs, exceeds $75,000.
8. Venue is proper in the Southern District of New York pursuant to
28 U.S.C. Section 1391(a)(2) because a substantial part of the events giving
rise to the claims
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asserted occurred in this District, including in Tyco's offices in this District
and at other locations in Manhattan.
FACTUAL ALLEGATIONS
9. Walsh served as a member of Tyco's Board of Directors from 1997
through February 2002, and as a Director of a predecessor of Tyco from 1992 to
1997. In 2001, Walsh was a member of the Corporate Governance and Nominating
Committee, and had been designated Tyco's "Lead Director" - i.e., the main
liaison between Tyco's outside directors and management. Prior to assuming those
positions, Walsh had served on and been Chairman of the Board's Compensation
Committee.
10. Walsh knew that Tyco's Bye-Laws (which are the legal equivalent of
an American company's articles of incorporation) expressly require Board
approval for any compensation paid to any director (Bye-Law 65), and require a
director to make full disclosure of his or her interest in any transaction or
proposed transaction with the Company. For example, Tyco's Bye-Laws provide:
A director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or arrangement or proposed
contract or arrangement with the Company shall declare the nature of
his interest at the meeting of the Directors at which the question of
entering into the contract or arrangement is first taken into
consideration, if he knows his interest then exists, or in any other
case at the first meeting of the Directors after he knows that he is
or has become so interested. (Bye-Law 64(7))
11. Walsh also knew that his duties to the Company forbid any
self-dealing, including soliciting or receiving any compensation other than his
disclosed compensation as a member of the Board without explicit Board approval
based on a finding that such compensation was arms'-length and in the best
interests of the Company.
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12. Walsh also knew that because of his position, self-dealing or
other misconduct by him would materially impair Tyco's reputation and
credibility.
13. In late 2000, Walsh responded to a suggestion that Tyco acquire a
financial services company by proposing that Tyco acquire the CIT Group, Inc.
("CIT"), and indicated that he would be able to introduce L. Dennis Kozlowski,
then Tyco's Chairman and CEO, to CIT's Chairman and CEO.
14. Walsh thereafter introduced Kozlowski to CIT's CEO, and promoted
the CIT acquisition to Kozlowski and to the Tyco Board. At no time prior to the
negotiation of the terms agreed to by CIT and Tyco for the acquisition did Walsh
ask for a fee or indicate in any way to the Board that he expected to profit
personally from the acquisition.
15. After the terms of the CIT transaction had been agreed to, Walsh
asked Kozlowski for a finder's fee to compensate him for his role in the
transaction. Walsh ultimately induced Kozlowski to agree to pay him a $20
million "fee" in connection with the CIT acquisition, of which half would be
given to a charitable fund designated by Walsh and over which Walsh would
exercise control, without Board approval and without informing the Board either
of Walsh's intent to receive such compensation or of Kozlowski's agreement to
make the payment.
16. Walsh knew that he was obligated to disclose to the Board his
interest in receiving a fee as part of the transaction and that the Tyco
Bye-Laws required that any such payment to a director had to be approved by the
Board. Walsh violated his duties to the Company and acted unlawfully in not
informing the Tyco Board that he intended to
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seek, and was seeking, a substantial finder's fee, and in not seeking the
Board's approval for such a fee.
17. As the Company's Lead Director and a member and former member of a
number of Board Committees, Walsh knew that it would be improper for Kozlowski
to agree to the payments Walsh was requesting, that Kozlowski had a clear duty
to notify the Board of Walsh's request, and that Walsh himself had a clear duty
to notify the Board of his request and of the payment he received in July, 2001.
Kozlowski and Walsh knew, intended, and agreed that the payments would be
concealed from the Board in violation of Kozlowski's duties and Walsh's own
duties.
18. Based in part on Walsh's promotion of the transaction, the Tyco
Board approved the CIT acquisition. At no time did Walsh recuse himself from the
Board's consideration of the transaction.
19. The CIT acquisition closed on or about June 1, 2001. On or about
July 31, 2001, Walsh received payments from Plaintiff totaling $20 million: $10
million to Walsh personally and $10 million to a charitable fund that Walsh
designated and controlled. Although part of the "fee" was sent directly to the
charitable fund, Walsh represented at the time, and has subsequently repeated,
that he understood his "fee" to be $20 million, and that the payment to the
charitable fund was being made at his direction.
20. The Tyco Board was not informed, and did not know, of these
payments prior to the time they were made, or at any time prior to January,
2002. The Tyco Board never authorized these payments, nor any other compensation
of any kind to Walsh beyond his regular, disclosed compensation as a director.
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21. Walsh owed Tyco strict fiduciary duties, including the duties of
loyalty and honesty. Walsh was already compensated for any work performed in
connection with the CIT acquisition by the cash payments and stock options paid
to each of the Company's directors, as disclosed in the Company's proxy
statements. By demanding a fee in addition to his normal compensation as a
director, by not seeking Board approval for that fee, and by promoting and
actively participating in the discussion of the CIT acquisition without
disclosing to the Board that he had a substantial, personal interest in the
transaction, Walsh breached his fiduciary duties to Tyco and induced Kozlowski
to breach his duties to the Board.
22. The non-executive members of Tyco's Board first learned of the
payments to Walsh in early January 2002, as part of the preparation of Tyco's
proxy statement for its 2002 annual general meeting. Walsh was informed that
certain non-executive directors believed the payments were improper, and had
instructed Kozlowski to get Walsh to return the money. Walsh refused.
23. Thereafter all the directors discussed the matter of Walsh's
payments in person on January 16, 2002. After hearing Walsh's defense of his
actions, he was excused from the room while the directors discussed the matter.
Walsh was then called back and informed that it was the unanimous view of the
directors that his "fee" had not been authorized, was improper, and had to be
returned. Walsh again refused, gathered his papers, and left the meeting. In the
Company's January 28, 2002 proxy statement for its February 21, 2002 annual
general meeting, the Board did not nominate Walsh for re-election as a director,
and his term of office expired at the annual general meeting.
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24. Not later than January 16, 2002, Walsh knew that Tyco was
obligated to disclose his payments in its proxy statement that was being
prepared and was to be released in two weeks. Walsh also knew, and had been
advised, that the disclosure of the payments, particularly if Walsh had not
agreed to return them, would cause significant damage to Tyco.
25. Walsh's wrongful refusal to return the payments when asked to do
so, knowing that the Company would shortly have to disclose the payments, was a
separate and independent tort, which was reasonably likely to, and did, cause
substantial damage to the Company.
26. On January 28, 2002, Tyco filed its proxy statement for its
upcoming annual general meeting with the Securities and Exchange Commission, and
the contents of that proxy, including the disclosure of the payments to Walsh,
became public. Following this disclosure, which was immediately picked up and
publicized in the national financial press, the share price of Tyco's stock fell
from $42 to $33.65, reducing the Company's market capitalization by $16.7
billion, in one day.
27. Tyco has continued to seek the return of the funds received by
Walsh in ways short of litigation, but has been unsuccessful.
FIRST CAUSE OF ACTION
(RESTITUTION)
28. Plaintiff realleges paragraphs 1 through 28 as if fully set forth
herein.
29. Under Tyco's Bye-Laws and Bermuda law (the jurisdiction of Tyco's
incorporation), the Company's Board of Directors must approve any payment of
compensation to any director. Absent authorization by the Board, no agreement to
pay
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any form of compensation to a director can be entered into by the corporation,
and any purported agreement to pay such compensation is null and void.
30. The Tyco Board of Directors never authorized the payment to Walsh
of any compensation beyond his regular, disclosed compensation as a director.
Thus any purported agreement to pay Walsh any fee relating to the CIT
transaction is void.
31. Walsh was and is therefore required to return the $20 million
"fee" to Tyco, with applicable interest as permitted by law.
SECOND CAUSE OF ACTION
(BREACH OF FIDUCIARY DUTY)
32. Plaintiff realleges paragraphs 1 through 28 as if fully set forth
herein.
33. At all relevant times, Walsh owed the strictest fiduciary duties
to Tyco, including duties of loyalty, honesty, and disclosure, and he was
required to act in Tyco's best interests, and not for his personal benefit.
34. Walsh breached his fiduciary duties in various ways, including
particularly by
(a) not disclosing his intent to receive substantial compensation
if Tyco's acquisition of CIT was accomplished;
(b) demanding substantial compensation for making an introduction
between Tyco and CIT, and performing other actions within
the scope of his duties as a director of Tyco;
(c) not disclosing to the Board his purported agreement to receive
a substantial fee, based on the purchase price Tyco was
paying for CIT, and not recusing himself from the Board's
deliberations on the transaction;
(d) not returning the funds when asked to do so, first by
individual directors and then by all the directors on
January 16, 2002, even though he knew that the payments
would be disclosed, and had been advised that the
disclosure of the payments would likely cause harm to
Tyco; and
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(e) failing properly to fulfill his duties as Lead Director and a
member of the Board, including by failing to properly
monitor and review the performance and conduct of
management.
35. In fact, Walsh's position at the time as Tyco's Lead Director and
member of the Corporate Governance and Nominating Committee made it
overwhelmingly likely that the disclosure of his payments would cause
substantial harm to the Company's reputation and credibility in the marketplace,
which it did.
36. Walsh is therefore liable to Tyco for all the loss suffered by the
Company as a result of Walsh's conduct, including his refusal in January 2002 to
return the funds in question.
37. Because of the intentional nature of Walsh's wrongful conduct, and
Walsh's abuse of his position of trust, Tyco is entitled to punitive as well as
compensatory damages.
THIRD CAUSE OF ACTION
(CONVERSION)
38. Plaintiff realleges paragraphs 1 through 28 and 30-31 as if fully
set forth herein.
39. In violation of the Tyco Bye-Laws, without the knowledge of the
Tyco Board of Directors, and without seeking the Board's approval, Walsh
wrongfully demanded and received $20 million of Tyco's corporate funds as a
purported finder's fee for introducing Tyco to CIT.
40. Tyco was at all times entitled to possession of the $20 million in
corporate funds wrongfully received by Walsh. Moreover, when the Tyco Board of
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Directors learned that Walsh had received the payment, the Board demanded that
Walsh return the $20 million of corporate funds to Tyco.
41. By wrongfully obtaining the $20 million of corporate funds, by
converting such funds to his own use without right or legitimate title thereto,
and by wrongfully refusing to return the $20 million of corporate funds to Tyco
upon demand, Walsh wrongfully converted the corporate funds to his own use.
42. As a result of Walsh's conversion and retention of Tyco corporate
funds, Tyco has been damaged in an amount in excess of $20 million plus
interest.
43. Because of the intentional nature of Walsh's wrongful conduct, and
Walsh's abuse of his position of trust, Tyco is entitled to punitive as well as
compensatory damages.
FOURTH CAUSE OF ACTION
(MONEY HAD AND RECEIVED/UNJUST ENRICHMENT)
44. Plaintiff realleges paragraphs 1 through 28, 30-31, and 41 as if
fully set forth herein.
45. Walsh has been unjustly enriched by his receipt and retention of
$20 million of Tyco corporate funds.
46. Under principles of equity and good conscience, Walsh should not
be permitted to keep the $20 million of Tyco corporate funds that he wrongfully
received.
47. As a result of Walsh's money had and received, Walsh is indebted
to Tyco in the amount of $20 million plus interest.
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FIFTH CAUSE OF ACTION
(CONSTRUCTIVE TRUST)
48. Plaintiff realleges paragraphs 1 through 28, 30-31, and 41 as if
fully set forth herein.
49. Because $20 million in Tyco corporate funds received by Walsh at
all times belonged to Tyco, Walsh received the corporate funds subject to a
constructive trust and Tyco is entitled to the imposition of a constructive
trust on the corporate funds received by Walsh.
SIXTH CAUSE OF ACTION
(INDUCING BREACH OF FIDUCIARY DUTY)
50. Plaintiff realleges paragraphs 1 through 28, 30-31, and 41 as if
fully set forth herein.
51. Walsh used his position as Lead Director and a member of the
Board's Corporate Governance and Nominating Committee to induce the Company's
officers to make the improper $20 million payments to and for the benefit of
Walsh, to then conceal such payments from the Board, and to delay and obstruct
efforts to recover such payments from Walsh.
52. Walsh's conduct has damaged, and foreseeably could be expected to
damage, Tyco; and Walsh is liable to Tyco for the amount of such damage.
53. Because of the intentional nature of Walsh's misconduct, and his
abuse of his position of trust, Tyco is entitled to an award of punitive
damages.
WHEREFORE, Tyco respectfully requests that the Court enter judgment in
Plaintiff Tyco's favor, and against Defendant Walsh, as follows:
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A. Ordering Walsh to disgorge the $20 million in funds to Tyco, with
interest as allowed by law, and imposing a constructive trust on such
funds and on any proceeds Walsh has received from his use of the $20
million and on any benefit he obtained by the use of said funds;
B. Awarding Tyco damages for the damage it has suffered as a result of
Walsh's breaches of fiduciary duty alleged herein, including the
damage suffered as a result of Walsh's refusal to return the
wrongfully-held funds when asked to do so by the Board in January
2002;
C. Awarding Tyco punitive damages; and
D. Awarding Tyco such other and further relief, including interest,
costs, disbursements and attorneys' fees incurred herein, as permitted
by law.
June 17, 2002
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Paul R. Verkuil
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Paul R. Verkuil (PV-5978)
Nicholas J. Gravante, Jr.
Harlan Levy
570 Lexington Avenue, 16th Floor
New York, New York 10022
(212) 446-2300
Ann M. Galvani
Andrew W. Hayes
Marilyn Kunstler
80 Business Park Drive, Suite 110
Armonk, New York 10504
(914) 273-9800
ATTORNEYS FOR PLAINTIFF
TYCO INTERNATIONAL LTD.
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