EX-99.(A)(6) 5 f90550a1exv99wxayx6y.txt EXHIBIT (A)(6) 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 -