Exhibit (a)(6)
REED SMITH CROSBY HEAFEY LLP
A limited liability partnership formed in the State of Delaware. "Reed Smith"
and "Reed Smith Crosby Heafey LLP" refer to Reed Smith LLP and related entities.
Kenneth J. Philpot (State Bar No. 62401)
Raymond A. Cardozo (State Bar No. 173263)
Heather Lenhardt (State Bar No. 217580)
REED SMITH CROSBY HEAFEY LLP
Two Embarcadero Center, Suite 2000
San Francisco, CA 94111
MAILING ADDRESS:
P.O. Box 7936
San Francisco, CA 94120-7936
Telephone: 415.543.8700
Facsimile: 415.391.8269
Attorneys for Plaintiff
Metric Partners Growth Suite Investors, L.P.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
METRIC PARTNERS GROWTH SUITE No. C03-2523-CRB
INVESTORS, L.P., a California limited
partnership, METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.'S EX PARTE
Plaintiff, APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND ORDER TO
vs. SHOW CAUSE WHY A PRELIMINARY
INJUNCTION SHOULD NOT ISSUE
KENNETH E. NELSON,
Date: As Soon As Court May Hear Matter
Defendant. Time: See Above
Place: See Above
Compl. Filed: May 28, 2003
Honorable Charles R. Breyer
Filed With: (1) Memorandum Of Points &
Authorities; (2) Declaration Of Kenneth J.
Philpot [Attaching Complaint And Other
Pertinent Documents]; [proposed] Order
Granting TRO And Issuing OSC Why A
Preliminary Injunction Should Not Issue
Plaintiff Metric Partners Growth Suite Investors, L.P.'s
(Metric) hereby applies ex parte for a temporary restraining order (TRO)
enjoining defendant Kenneth Nelson (Nelson) forthwith from taking any further
action to support a tender offer and consent solicitations that he
No. C03-2523-CRB - 1 -
EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE
WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE
REED SMITH CROSBY HEAFEY LLP
A limited liability partnership formed in the State of Delaware. "Reed Smith"
and "Reed Smith Crosby Heafey LLP" refer to Reed Smith LLP and related entities.
has submitted to the holders of limited partnership interests in Metric (unit
holders) in violation of (1) the provisions in Metric's Partnership Agreement
that set forth the procedure for submitting such an offer and solicitations to
Metric's unit holders and the matters that may be presented in such an offers or
solicitation, (2) the disclosure requirements of the federal securities laws,
and (3) California breach of fiduciary duty law.
This TRO Application is made to preserve the status quo and
prevent Metric from suffering irreparable injury from Nelson's unlawful action
before Nelson can be heard in opposition and before the Court can hear and
decide a motion for a preliminary injunction. Metric further requests that the
Court set for hearing a motion for a preliminary injunction at the earliest
possible time, not to exceed 10 days from the entry of a TRO, that the Court
deem these application papers as a motion for preliminary injunction upon
setting such a hearing, and that the Court thereafter grant a preliminary
injunction enjoining Nelson's invalid tender offer and consent solicitations.
Metric advised Nelson on May 28, 2003 that it would seek
injunctive relief if he did not refrain from his unlawful conduct. Nelson
requested, and Metric granted, him until the afternoon of June 2, 2003 to
indicate whether he would cease the challenged conduct. Nelson advised on the
afternoon of June 2 that he would not cease his conduct, and Metric advised at
that time that it would be filing this TRO application the next day. The next
day, Metric served this TRO application by hand on Nelson's counsel before
filing it in this Court. Nelson has advised that he intends to oppose the
application.
This application is based on this application, the
accompanying memorandum of points and authorities, the Declaration of Kenneth J.
Philpot filed herewith, the Complaint on file in this action (attached as
Exhibit 1 to the Declaration of Kenneth J. Philpot), the proposed temporary
restraining order and order to show cause filed herewith, and any other papers
or
No. C03-2523-CRB - 2 -
REED SMITH CROSBY HEAFEY LLP
A limited liability partnership formed in the State of Delaware. "Reed Smith"
and "Reed Smith Crosby Heafey LLP" refer to Reed Smith LLP and related entities.
arguments that the parties may present in connection with this application or
ensuing preliminary injunction motion proceedings.
DATED: June 3, 2003.
REED SMITH CROSBY HEAFEY LLP
By /s/ Kenneth J. Philpot
------------------------------
Kenneth J. Philpot
Attorneys for Plaintiff
Metric Partners Growth Suite Investors,
L.P.
No. C03-2523-CRB - 3 -