Electronically Filed 11/19/2013 06:12:21 PM ET IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502010DR006817XXXXMB FD. CAROL LEE SCULLEY, GENERAL JURISDICTION DIVISION Petitioner/Wife, vs, JOHN SCULLEY. Respondent/Husband, SECOND AMENDED PETITION FOR 12.540 RELIEF, BREACH OF CONTRACT, AND MISREPRESENTATION Petitioner, CAROL LEE SCULLEY (“Leezy Sculley”), individually, by and through her undersigned counsel, sues Respondent, JOHN SCULLEY (“Mr. Sculley”), and alleges as follows: FACTUAL ALLEGATIONS AS TO ALL COUNTS 1, This is an action for 12.540 relief, breach of contract, and misrepresentation seeking equitable relief and damages in excess of Fifteen Thousand Dollars ($15,000.00), exclusive of interest, costs and attorney's fees. 2. Petitioner, Leezy Sculley, is citizen and resident of Palm Beach County, Florida. 3. Respondent, Mr. Sculley, is citizen and resident of Palm Beach County, Florida, 4, This court has personal jurisdiction over Respondent and venue is proper in this Court because the parties reside in Palm Beach County, Florida, this Court adjudicated the | Dissolution of Marriage of the parties on March 10, 2011 and the Court reserved jurisdiction to enforce its judgment 5. Each cause of action accrued in Palm Beach County, Florida. MIADOCS 8821775 16. All. conditions precedent to the bringing of this action have occurred, have been performed, or been waived. BACKGROUND FOR SUIT A. The Pleadings. 7. On June 4, 2010, Petitioner, Leezy Sculley, filed her Petition for Dissolution of Marriage before this Court seeking to dissolve her 32 year marriage to Respondent, John Sculley {the “Dissolution Proceeding”). 8. John Sculley was married to Leezy Sculley in 1978, During the marriage, Leezy Sculley was a faithful wife and supported Mr. Sculley in all of his business ventures, including, his years with Pepsi, his years with Apple, and his new business ventures including those developed through Sculley Brothers. 9. During the marriage, Mr. Sculley was under no legal obligation (although he certainly had a moral and ethical obligation) to be honest and to tell his wife the truth, In the Dissolution Proceeding, however, he was required by law to be honest and to state the truth in his sworn Financial Affidavit filed with the Court and in his sworn deposition testimony given in the case. This action arises because John Sculley lied to Leezy Sculley and to the Court in connection with the Dissolution Proceeding, submitted a false Financial Affidavit to Leezy Sculley and the Court, and failed to fully and honestly disclose his assets, financial resources and wherewithal accumulated during the marriage including, but not limited to, substantial private equity investmen S and investments in privately held companies and ventures around the globe, In addition to his fies and material non-disclosures in connection with the mandatory disclosure of assets he concealed the funding necessary for some of the companies that were disclosed during the Dissolution Proceeding. Miabocs #2171310. On February 25, 2011, the parties entered into a Martial Settlement Agreement (the “MSA"), Leezy Sculley negotiated and agreed to the MSA in justifiable reliance on the sworn financial affidavit and related disclosures from Mr, Sculley. A copy of the MSA is attached hereto as Exhibit A. Paragraph 10 of the MSA provides that “the party intentionally failing to disclose the asset will be requit cd t0 pay the reasonable and necessary attorney's fees and costs to the party discovering the asset or liabi ty.” H1, On March 10, 2011, this Court entered its Final Judgment of Dissolution of Marriage in the Dissolution Proceeding. The Final Judgment ratified and approved the settlement agreement between the parties. A copy of the Final Judgment is attached hereto as Exhibit “B”, 12. As noted above, in connection with the Dissolution Proceeding, as required by the aw of this State, the parties were required to make full, complete and accurate disclosure of their assets, financial resources and wherewithal accumulated during their 32 year marriage. While Leezy Sculley complied with her legal obligation to do so, Mr. Sculley did not. Indeed, Mr. Sculley signed a false and perjured Financial Affidavit which did not disclose all of his assets, Financial resources and wherewithal. A true and correct copy of Mr. Sculley's Financial Affidavit submitted in connection with the Dissolution Proceeding is attached hereto as Exhibit oc B. John Scultey. 13. John Sculley is one of the most well recognized and powerful businessmen in the world. He was the President of PepsiCo (Pepsi Corporation) for 7 years from 1977 to 1983, and was the Chairman and CEO of Apple Computer for 10 years from 1983 to 1993. In May 1987, MIapacs 8121774 3John Sculley was Silicone valley's top paid executive with an annual salary of $2.2 million. While at Apple, sales increased from $800 million to $8 illion under John Sculley’s management. After he left Apple, he continued pioneering, investing and managing new business ventures, many of which were accomplished by or through Sculley Holdings, Sculley Associates and/or Sculley Brothers, partnerships comprised of himself and his brothers, Arthur and David, 14, His power and influence continue to shape the landscape of corporate America and often reach far beyond the shores of the United States. His presence and prominence has manifested and continues to manifest itself in many new business ventures which were created and promoted by him and his brother in the United States and throughout a number of other countries around the globe, including Canada, United Kingdom, Singapore and India, 15. John Sculley is also regularly consulted by writers for financial periodicals and is often interviewed on business related news programs on television and the Internet, Because of his stature, his wealth, and business acumen, he is often sought out by entrepreneurs, financial consultants and businessmen who want to develop new business opportunities in the U.S. and globally. Moreover, John Sculley is the subject of thousands of news reports and press releases, all over the world and because of his success he is viewed as one of the most prominent businessmen and entrepreneurs of our time. C. The Undisclosed Assets and History of the Scheme to Defraud the Wife. 16. In approximately 2000, John Sculley started an extramarital affair with his former 17. Shortly after that, he served separation papers on Leezy Sculley which devastated Ms. Sculley and completely took her by surprise. She had no idea that Mr. Sculley was thinking MIADOCS 8421774 4of getting divorced or that he was having an affair with a former Apple employee, or with anyone else for that matter. 18. It is now apparent that at this point John Sculley secretly and fartively began hiding assets from Leezy Sculley. Indeed, Mr. Sculley secretly harbored the intent and desire to end his marriage and to leave his wife from at least 2001 until June of 2010 when the Dissolution Proceeding were initiated by Leezy Sculley 19, Beginning in 2001 or shortly thereafter, John Sculley enlisted the support and uid of his brothers, Arthur and David, and others, to help him transfer assets, investments, business opportunities, and intellectual property (hereinafter the “Transferred or Hidden Marital Assets”) away from the Sculley marital estate (the “Marital Estate”) to his brothers, to other third parties, and/or to simply hide these assets from Leezy Sculley because he knew that he would soon be getting divorced. 20. During the years following his departure from Apple, John Sculley became involved in a number of hi-tech start-up companies, new business enterprises, and investments in existing companies, some of which became very successful and some of which did not, All of these companies were part of the Marital Estate. Some of them were disclosed in the Dissolution Proceeding, but a significant number were not. 21. John Sculley used assets from the Marital Estate to invest in and/or develop his holdings in these non-disclosed companies. To accomplish his goal of hiding assets, many of his holdings were held in the names of his brothers, his brothers’ companies, or were simply hidden ‘and not disclosed in the Dissolution Proceeding, These were the Transferred or Hidden Marital Assets, ‘Miapocs 812177422. ‘The Transferred or Hidden Marital Assets were not disclosed in John Sculley's Financial Affidavit nor were they disclosed during his deposition taken in the Dissolution Proceeding after the Financial Affidavit was given to Leezy Sculley and submitted to the Court. 23. In fact, during his deposition, and at the direction of his counsel, John Sculley concealed the existence of one or more companies under the false claim that he was bound by a non-disclosure agreement 24. ‘The Transferred or Hidden Marital Assets include, but are not limited to, the following: Acme Capital Corporation Audax Health Solutions, Ine. Buy.com, Ine. ‘Cambridge Display Technologies Changemytyre.com CreditTrade, LLP Gigaset Communications, GmbH izmoz, Ine. GuruNet n/l/a Answers.com Hotwire.com Inflexion Point Acquisition Corp. MDLive, Inc. Misfit Wearables Corp. Mobeam investment Partners, LLC NetObjects, Ine NFO Research, Inc. Peopleticker.com PESWeb, Inc. Pivot Acquisition Corp. Pivot Technology Solutions, Ine Pivot Shared Services Corp. QBit, LLC SCF Capital, Ine. SCF Transforms, Ine Sculley Brothers, LLC Select Comfort Corporation SOGEP SMSAGING, LLC MIABOCS 482177SOIF Advisors, LLC South Ocean Investment Fund, LP Tello Corporation Transforma Acquisition Group 25. Upon information and belief, the Transferred or Hidden Marital Ass value in excess of $25 million and should be returned to the Marital Estate for di accordance with Florida law. 26. Further, Mr. Sculley, who controlled many of the companies, concealed from Leezy Sculley the material fact that some of the companies which were distributed between the parties during the Dissolution Proceeding would need additional funding in order to operate and grow, This hidden fact was material to Leezy Sculley’s agreement to the MSA in the Dissolution Proceeding since Mr, Sculley negotiated an MSA that deprived Leezy Sculley of any future alimony payments, or of any liquid assets from which she could participate in the funding, of the disclosed compai 27. Specifically, Mr. Sculley purposely negotiated an MSA that would tie-up virtually all of Leezy Sculley's liquid assets in order to prevent her from participating in or otherwise providing the capital needed for these companies. As a result, Leezy Sculley could not increase her interests in the companies and Mr. Sculley was able to unfairly dilute her interests, in these companies distributed pursuant to the MSA. This deception and Leezy Sculley’s reasonable reliance on Mr, Sculley’s failure to disclose led her to agree to enter into the MSA and forego the possibility of alimony after 32 years of marriage, to her detriment. 28, The representations regarding the nature and extent of the Marital Estate made by John Sculley in his Financial Affidavit and his testimony given at his deposition in the Dissolution Proceeding constitute material misrepresentations of fact, were reasonably and MADOCS 8821778 7justifiably relied upon by Leezy Sculley in connection with her decision to enter into the MSA, and were false, incomplete, misleading, and were known to be false and misleading by John Sculley at the time he made these representations. 29. Asa result of Mr. Sculley's fraudulent inducement, the Court should adjudicate a fair and equitable distribution of the Marital Estate, and/or alternatively, the Court should award damages to Leezy Sculley in accordance with paragraph 10 of the MSA. COUNT | - BREACH OF THE MARITAL SETTLEMENT AGREEMENT. 30. Leezy Sculley repeats and realleges each and every allegation contained in paragraphs I through 29 as if fully set forth herein. 31. On February 25, 2011, the parties entered into the MSA. Leezy Sculley negotiated and agreed to the MSA in reasonable reliance upon what should have been a full and fair disclosure from her husband, the most important of which should have been an accurate Financial Affidavit from John Sculley, related discovery, and sworn testimony which are now known to be materially false. 32. On March 10, 2011, this Court entered Final Judgment of Dissolution of Marriage in the Divorce Proceeding which incorporated and approved the settlement agreement between the parties. Ms, Sculley fully performed all of her obligations under the MSA. 34. Mr. Sculley breached paragraph 10 of the MSA by intentionally failing to disclose all of the assets which comprise the Marital Estate and by failing to identify all of the marital assets which comprise the Marital Estate on the Husband's Financial Affidavit dated August 17, 2010. MIADOCS #42177535. Moreover, Mr. Sculley breached his obligations under the MSA by failing to fully disclose his assets, financial resources and wherewithal accumulated during the marriage. In addition, he concealed the need for additional funding for the companies disclosed and distributed during the Dissolution Proceeding which also damaged Ms, Sculley. 36. John Sculley also used assets from the Marital Estate to invest in and/or develop his holdings in the Transferred or Hidden Marital Assets, as more specifically described in paragraphs 1 through 29 above. 37. ‘The Transferred or Hidden Marital Assets were not disclosed in John Sculley's Financial Affidavit nor were they disclosed during his deposition taken in the Dissolution Proceeding after the Financial Affidavit was given to Leezy Sculley and submitted to the Court, all in breach of paragraph 10 of the MSA. 38. Based upon Mr. Sculley’s material breach of the MSA, the Transferred or Hidden Marital Assets should be returned to the Marital Estate for distribution in accordance with Florida law. Upon information and belief, the Transferred or Hidden Marital Assets have a value in excess of $25 million. Likewise, funds which constitute marital waste should be accounted for and distributed. 39. Paragraph 10 of the MSA provides that “the party intentionally failing to disclose the asset will be required to pay the reasonable and necessary attorney's fees and costs to the party discovering the asset or liability.” John Sculley intentionally failed to disclose assets which comprise the M: | Estate in violation of paragraph 10 of the MSA. 40. As a direct result of Mr. Sculley’s breaches of the MSA, Leezy Sculley has suffered substantial damages, including, but not limited to, the value of the dilution in her siiapocs s121774interests in the companies disclosed and distributed during the Dissolution Proceeding, value of the Transferred or Hidden Marital Assets, attorney's fees, and court costs. WHEREFORE, Petitioner, CAROL LEE SCULLEY, demands judgment against Respondent, JOHN SCULLEY, for damages, prejudgment interest, attorney's fees, costs and such other and further relief as this Court deems necessary and proper. COUNT FRAUDULENT ISREPRESENTATION 41. Leezy Sculley repeats and realleges each and every allegation contained in paragraphs | through 29 as if fully set forth herein. 42. During the Dissolution Proceeding, John Sculley made numerous false representations of material fact to Leezy Sculley, including the representations made by John Sculley in his Financial Affidavit and during his testimony given at his deposition in the Dissolution Proceeding which were false. He also materially omitted certain facts and information which he was obligated by law to disclose. 43, John Sculley’s affirmative misrepresentations of material fact include, but are not limited to: (i) Atthe introduction of his Financial Affidavit on page 1, he falsely states that “I, John Sculley, being sworn, certify that the following information is true”; (ii) On page 6 of John Sculley’s Financial Affidavit, in Section III ASSETS AND. LIABILITIES, John Sculley falsely identifies assets on pages 6, 7, 8, and 9 which allegedly represent all of the assets of the Marital Estate and which allegedly have a fair market value of $9,824,262.00; (i) On page 10 of John Sculley’s Financial Affidavit, in Section III ASSETS AND LIABILITIES, John Sculley falsely represents that the total liabilities and debts for the Marital Estate are $4,946,574.00; (iv) On page 11 of John Sculley's Financial Affidavit, John Sculley falsely represents the total net work of the Marital Estate to be $4,877,688.00; sanocs s121774 10(v) On page 12 of John Sculley’s Financial Affidavit, John Sculley falsely swore and affirmed under oath to the truthfulness of the statements made in his Affidavit; (vi) _ In John Sculley's deposition, at page 7, John Sculley falsely testified that his Financial Affidavit lists “each and every asset which [he] owned or had an interest in at the time the Petition for Dissolution of Marriage was filed.” (vii) In John Seulley’s deposition, at page 29, John Sculley falsely testified that the list of companies reflected on his Financial Affidavit represented everything that he owned or had an interest in that had any value as of December 10, 2010; (viii) _In John Sculley's deposition, at page 30, John Sculley falsely testified that he could not disclose any information about his participation in new projects that he was working on because he was bound by a non-disclosure agreement; (ix) _ In John Sculley’s deposition, at page 31, John Sculley falsely testified that his involvement in the “Value-Added Re-Seller Business sn October 2010; (x)__ In John Sculley's deposition, at page 31, John Sculley falsely testified that no ‘marital assets were involved in the “Value-Added Re-Seller Business” which Mr. Sculley testified he was working on at page 29 of his deposition; (si) During the Dissolution Proceedings but prior to the entry of the Final Judgment of Dissolution, John Sculley falsely represented to Leezy Sculley that she should retain her investment in Intralinks, Ine, because it was a good investment while he secretly planned to immediately sell his interest in Intralinks, Inc. because he knew the company was going to substantially decline in value; and (xii) On pages 6 to 8 of John Sculley’s Financial Affidavit, John Sculley falsely represented that the “Current Fair Market Value” of his Venture Capital Funds, Private Equity Funds and certain Privately Held Investments are to be determined when, in fact, Mr. Sculley knew the values of these investments, 44. John Sculley’s omissions and concealment of material fuct include, but are not limited to: (___ Disclosure of all assets which comprise the Marital Estate in his Financial Affidavit dated August 17, 2010; (ii) _ Disclosure of all debts and liabilities associated with the Marital Estate in his Financial Affidavit dated August 17, 2010; (ii) Disclosure of the true net worth of the Marital Estate in his Financial Affidavit dated August 17, 2010; MIADOCS 88217(iv) Disclosure of all assets which comprise the Marital Estate during his deposition given on December 10, 2010; (¥) Disclosure of all assets which comprise the Marital Estate which had any value in his Financial Affidavit dated August 17, 2010 and during his deposition given on December 10, 2010; (vi) Disclosure of his involvement with the Value-Added Re-Seller company discussed at page 29 of his deposition given on December 10, 2010; (vii) Disclosure of marital assets involved with or utilized in connection with the development of the Value-Added Re-Seller company discussed at page 29 of his deposition given on December 10, 2010; and (viii) Disclosure of the “Current Fair Market Value” of his Venture Capital Funds, Private Equity Funds and certain Privately Held Investments at the time of creation and execution of the Financial Affidavit, when the fair market value was known or reasonably iscertainable. 45. Leezy Sculley reasonably and justifiably relied upon these false representations and omissions and concealment of material fact by John Sculley in connection with her decision to enter into the MSA and her decision not to sell the Interlinks, Ine. stock. 46, These misrepresentations and omissions and concealment of material facts were intentionally false, misleading and were known to be false by John Sculley at the time he made these representations, Mr, Sculley also knew that he was materially omitting information which was required by law to be disclosed during the Dissolution Proceeding. 47, These misrepresentations and failures to disclose are and were untrue, misleading and incomplete and were made with the malicious intent and purpose of inducing Leezy Sculley to rely upon them, which Leezy Sculley did to her injury and damage. 48. Mr. Sculley made these mistepresentations and failed to disclose material information with malice knowing that the representations were false, untrue, misleading and/or incomplete. MIADOCS 812177849. Mr. Sculley knew that these misrepresentations and non-disclosures are and were untrue, misleading or incomplete. 50. Mr. Sculley intentionally failed to disclose and omitted the Transferred or Hidden Marital Assets from his Financial Affidavit and during his deposition taken in the Dissolution Proceeding after the Financial Affida was given to Leezy Sculley and submitted to the Court. Mr. Sculley also concealed the material fact that some of the companies that were disclosed and distributed during the Dissolution Proceeding needed additional funding, which Leezy Sculley will not be able to provide after agreeing to @ MSA that would waive her alimony rights and would not ullow her for liquid assets. Likewise, funds which constitute marital waste were not disclosed. 51. Leezy Seulley could not discover Mr. Sculley’s misrepresentations and omissions, and the damages caused by Mr. Sculley’s misrepresentations and omissions with the exercise of ordinary and due care because the undisclosed marital waste and the Transferred or Hidden Marital Assets were purposely and furtively hidden by Mr. Sculley and omitted from his Financial Affidavit in the Dissolution Proceeding so that Leezy Sculley could not discover the misrepresentations and intentional omissions. Furthermore, Leezy Sculley was an unsophis icated lay person while Mr. Sculley was a highly sophisticated and well connected businessman who utilized his unfair bargaining position and knowledge to defraud Leezy Sculley as described above. 52. As a direct and proximate result of Mr. Sculley's misrepresentations and omissions, Leezy Sculley has suffered in the past and will continue to suffer in the future damages, including but not limited to, loss of the full value of the Marital Estate, an equal, fair ‘and equitable distribution of the funds dissipated as marital waste, the value loss for the dilution MIADOCS 821774 13to her interests in the companies disclosed and distributed during the Dissolution Proceeding, loss of value of the Intralinks, Ine. stock which Leezy Sculley would have realized had she not, been lied to by Mr. Sculley and the loss of value relating to the Transferred or Hidden Marital Assets which, upon information and belief, have a value in excess of $25 million, mental suffering, pain and anguish (See Food Fair, Inc, v. Anderson, 382 So. 2d 150, 154-155 (Fla, 5" DCA 1980), attomey’s fees, and court costs. WHEREFORE, Patitioner, CAROL LEE SCULLEY, demands judgment against Respondent, JOHN SCULLEY, for damages, attorney's fees, costs and such other and further relief as this Court deems necessary and proper. ;OUNT IH — 12, RELIEF 53. Leezy Sculley repeats and realleges each and every allegation contained in paragraphs | through 29 as if fully set forth herein, 54. This is an action for relief under 12.540. 55. Leezy Sculley was induced and entered into the MSA as a direct result of the ‘material misrepresentations and omissions of fact maliciously made by John Sculley in his fraudulent Financial Affidavit, related disclosures and sworn testimony. 56. Ms, Sculley reasonably relied upon the foregoing fraudulent Financial Affidavit, ‘misrepresentations and omi ns of fact in entering into the MSA. 57. The foregoing fraudulent Financial Affidavit, misrepresentations and omissions of fact were all later discovered by Ms. Sculley to be false and misleading after the Final Judgment in this action was entered. Furthermore, Mr. Sculley failed to fully and honestly disclose his, assets, financial resources and wherewithal accumulated during the marriage. Miapocs #2177458. Mr. Sculley knew that the misrepresentations and omissions made in his Financial Affidavit and in sworn testimony during his deposition in the Dissolution Proceeding were false when these misrepresentations and omissions were made and made the misrepresentations and ‘omissions with the sole purpose and intent of maticiously defrauding Leezy Sculley. 59. Based upon the foregoing fraudulent conduct, Leezy Sculley seeks to set aside the portion of the final judgment incorporating the marital settlement agreement of the parties so that, the Court may adjudicate a fair and equitable distribution of the Marital Estat. 60. Leezy Sculley is entitled to fees and costs both as a matter of contract and equity. WHEREFORE, Petitioner, CAROL LEE SCULLEY, respectfully requests that this Court enter an Order (1) vacating the portion of the final judgment which Incorporated the Marital Settlement Agreement; (2) declaring that the Marital Settlement Agreement to be null and void ab initio: (3) directing John Sculley to provide an accounting of all of the Transferred or Hidden Marital Assets and marital waste; (4) adjudicating a fair and equitable distribution of the Marital Estate, (5) awarding attorney's fees and court costs in Ms. Sculley's favor, and (6) granting such other and further relief as this Court deems necessary and proper. Respectfully submitted, SHUTTS & BOWEN LLP FISHER & BENDECK, P-L. Counsel for Petitioner Co-Counsel for Petitioner 201 S. Biscayne Boulevard 501 South Flagler Drive 1500 Miami Center Suite 450 Miami, Florida 33131 West Palm Beach, Florida 33401 (305) 358-6300 (561) 832-1005 (305) 381-9982 Facsimile Odette M. Bendeck | Florida Bar No. 500208 By:/siHarold E. Patricoff. obendeck@ fisherbendeck.com Harold E. Patricoft Kristina M. Candido Florida Bar No, 508357 Florida Bar No. 176044 hpatricoff@ shutts.com kmeandido@ fisherbendeck.com MIADOCS #121778 15CERTIFICATE OF SERVIC THEREBY CERTIFY that the foregoing was served via electronic mail upon Martin L. Haines, IML, Esq., (martin.haines@ martinthaines.com), 501 North Federal Highway, Lake Park, FL 33403 this 19th day of November, 2013. tsHarold E. Patricof ‘OF COUNSEL Muapocs se21774