Opinion
No. C03-2523-CRB
December 11, 2003
Kenneth J. Philpot, Raymond A. Cardozo, Heather Lenhardt, REED SMITH CROSBY HEAFEY LLP, San Francisco, CA, for Plaintiff Metric Partners Growth Suite Investors, L.P.
Travis R. Wall, STEEFEL, LEVITT WEISS A Professional Corporation, for Defendant
STIPULATED JUDGMENT GRANTING PERMANENT INJUNCTTVE RELIEF AND DISMISSING REMAINING ALLEGATIONS AS MOOT
Stipulation to Judgment
In May 2003, Defendant Kenneth Nelson (Nelson) distributed a tender offer and consent solicitations to the unit holders of Plaintiff Metric Partners Growth Suite Investors, L.P. (Metric). Metric filed a complaint for declaratory and injunctive relief and applied for a temporary restraining order with respect to the tender offer and consent solicitation. The Court granted a temporary restraining order enjoining Nelson from taking any further action in support of his tender offer and consent solicitations except that he was allowed to attempt to convene a vote of the limited partners in accordance with the partnership agreement. The parties thereafter stipulated to entry of a preliminary injunction on the same terms. On October 31, 2003, Nelson's tender offer expired in accordance with its terms.
The parties, by and through their attorneys of record, now stipulate to judgment as follows:
1. The Court declares that, pursuant to the voting provisions of Metric's partnership agreement, a person may not solicit consents from Metric's unit holders in connection with matters for which a meeting or vote without a meeting has not been called by Metric's managing general partner, either of the general partner's own initiative or following receipt of written request therefor by limited partners holding 10 percent or more of the units held by all of Metric's limited partners as of the date of request for the meeting or vote.
2. The Court permanently enjoins Nelson from soliciting consents from Metric's unit holders in connection with matters for which a meeting or vote without a meeting has not been called by Metric's managing general partner, either of the general partner's own initiative or following receipt of written request therefor by limited partners holding 10 percent or more of the units held by all of Metric's limited partners as of the date of request for the meeting or vote.
3. All other allegations in Metric's complaint are dismissed as moot.
4. Metric and its surety may withdraw the bond that Metric posted as a condition of obtaining temporary and preliminary injunctive relief.
5. Each side shall bear its own costs and attorney fees.
SO STIPULATED,
PURSUANT TO STIPULATION, IT IS SO ORDERED, ADJUDGED AND DECREED.