Disclosure Questions at Tyco

Editor's Note: Herb Greenberg's column runs exclusively on RealMoney.com; this is a special free look at his column. For a free trial subscription to RealMoney.com, click here. This article was published Jan. 23 on RealMoney.

There's nothing wrong with CEOs and CFOs investing in other companies, but when they don't disclose the outside ventures, that raises questions about what else they may not be disclosing.

Which brings us to Tyco , whose CEO Dennis Kozlowski and CFO Mark Swartz have been quietly involved with another company without ever telling Tyco investors.

The company in question, Global Technology Marketing International, better known as TargitMail, is in the business of email marketing. It was private until May 2001, when it was bought by GourmetMarket.com, a publicly traded company that owned and operated a "culinary e-commerce site" that decided to shift gears and go into the email marketing business. Shortly thereafter, GourmetMarket.com changed its name to TargitInteractive (TGIT Quote), and Kozlowski and Swartz -- TargitMail's principal shareholders -- wound up owning more than half the stock in TargitInteractive.

Tyco's proxy for last year still hasn't been filed -- it's due next week. But Kozlowski and Swartz were named in the press as "backers and directors" of privately held Global/Targit before Tyco filed its last proxy a year ago -- and that proxy said nothing about their involvement with Global/Targit.

Kozlowski and Swartz now serve on TargitInteractive's advisory board while two Tyco executives -- Louis Chiesa and Byron Kalogerou -- sit on TargitInteractive's board. According to TargitInteractive's Web site, Chiesa has been a Tyco employee since 1975, serving in various financial and administrative roles.

He is currently senior vice president of MIS and administration. The Web site says he served as a consultant to TargitMail "at its inception." Kalogerou, meanwhile, has worked at Tyco since 1990, and since January 2000 has been vice president and general counsel and secretary of Tyco Communications Group.

And let's not forget this twist to the plot: GourmetMarket.com was owned by iiGroup (now called Travlang) whose CEO until last March was Neil Swartz, the brother of Mark Swartz. A partnership controlled by the brothers owned 8.32% of iiGroup at the time.

All of which leads to the question: Has Tyco done any business with TargitMail in the past? And if Chiesa was a consultant to TargitMail, was he on loan from Tyco, or was he paid for his services by TargitMail?

In a telephone conversation with me this morning, a Tyco spokeswoman said the implications of my question are "sleazy," and that not only does Tyco do no business with TargitInteractive, but "there is no conflict of interest. This is a small company run by Mark's brother."

O Brother, Where Art Thou?

Run by Mark's brother? But Mark's brother's name doesn't show up in SEC documents, or on the company's Web site listing of management. His company, MCG partners, does show up as a large TargitInteractive holder; MCG also signed a deal in April to do investment banking for TargitInteractive, for which TargitInteractive agreed to pay MCG a consulting fee of $5,000 per month for 12 months. (In effect, he was paid to help GourmetMarket buy his brother's company, TargitMail.) Swartz stresses that his brother and Kozlowski have no involvement in running the company but they simply put up the money for the creation of TargitMail.

Are Kozlowski and Swartz involved with any other private companies? The spokeswoman didn't know, and said she would have to ask them, but they're on the road.

If they are invested in other companies, let's hope they're doing better than TargitInteractive, which lost $3.7 million during the first nine months of 2001. In the company's words in its last 10-Q, mounting losses and negative cash flows "raise substantial doubt about the company's ability to continue as a going concern."

Separately, on Jan. 15, Tyco said it repurchased 2 million shares of stock "so far" this quarter. In Tuesday's meeting with analysts to announce Tyco's bust-up, Kozlowski said the deal has been studied "over the past many weeks."

If so, wouldn't Tyco's stock purchases be considered trading on insider information? The spokeswoman says repurchases were finished before the company started discussing the deal in earnest two weeks ago.