No. D-1-6N-10-1001466 SRIKANTA Plaintiff vs INCORPORATED, CYNTHIA GERRY VAN MARSH , AND SURESH Defendants § § § § § § § § § IN THE DISTRICT COURT TRAVIS COUNTY, TEXAS 53rd JUDICIAL DISTRICT · PLAINTIFF'S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER, AND TEMPORARY INJUNCTION PLAINTIFF, SRIKANTA files his Verified Application for Temporary Restraining Order and Temporary Injunction as a supplement to his Plaintiffs Original Petition and incorporates by reference all allegations and causes of action alleged therein, and would respectfully show this Court as follows: INTRODUCTION 2. Plaintiff is Srikanta (" Defendants are Incorporated, (" or "the Corporation"), Cynthia (" Gerry (" Van (" Marsh (" and Suresh (" 3. Plaintiff sued Defendants for damages and equitable relief for shareholder oppression and breach of fiduciary duties in a derivative action. FACTS ON WHICH THIS APPLICATION IS BASED A. Plaintiff's Reasonable Expectations and Defendants' Oppressive Conduct. 4. Plaintiff currently owns· 7% of the outstanding shares of Defendants and are all current board members 5. Plaintiff joined the original company in 1989 and worked in a variety of technical and managerial roles and was promoted to Director, Waste Isolation Services in January, 2009. As a PLAINTIFF'S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER -1
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No. D-1-6N-10-1001466 PLAINTIFF'S VERIFIED PLAINTIFF'S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ... Restraining Order and Temporary Injunction as a supplement to his Plaintiffs
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No. D-1-6N-10-1001466
SRIKANTA Plaintiff
vs
IN CORPORA TED, CYNTHIA GERRY VAN MARSH , AND
SURESH Defendants
§ § § § § § § § §
IN THE DISTRICT COURT
TRAVIS COUNTY, TEXAS
53rd JUDICIAL DISTRICT
· PLAINTIFF'S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER, AND TEMPORARY INJUNCTION
PLAINTIFF, SRIKANTA files his Verified Application for Temporary
Restraining Order and Temporary Injunction as a supplement to his Plaintiffs Original Petition
and incorporates by reference all allegations and causes of action alleged therein, and would
respectfully show this Court as follows:
INTRODUCTION
2. Plaintiff is Srikanta (" Defendants are Incorporated,
(" or "the Corporation"), Cynthia (" Gerry (" Van
(" Marsh (" and Suresh ("
3. Plaintiff sued Defendants for damages and equitable relief for shareholder oppression
and breach of fiduciary duties in a derivative action.
FACTS ON WHICH THIS APPLICATION IS BASED
A. Plaintiff's Reasonable Expectations and Defendants' Oppressive Conduct.
4. Plaintiff currently owns· 7% of the outstanding shares of Defendants
and are all current board members
5. Plaintiff joined the original company in 1989 and worked in a variety of technical and
managerial roles and was promoted to Director, Waste Isolation Services in January, 2009. As a
PLAINTIFF'S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER -1
Pickens' 11% interest and Longsine's 2.8% interest for approximately $8 Million dollars at
$9.90 per share. Again, the Corporation paid the purchase price in an immediate, one-time
payment, even though this payment required the company to take on a $4 Million dollar loan.
9. On April 1, 2010 Plaintiff gave his written notice of employment resignation to
Defendant and cited his last day as April 16, 2010. He requested that the Corporation
make an immediate, one-time payment for his shares as it had done in every other share
purchase. Plaintiffs request to redeem his shares was a request to enter into a voluntary
transaction with the Corporation. In response, flatly refused to redeem Plaintiffs
shares as requested, and he told Plaintiff that he would not be treated like all other shareholders
had been in the past.
10. Initially, told Plaintiff that he would convene a board meeting and let Plaintiff
make his case to the Board as to the length of the payout. However, given dominance
and control, the decision had been made, which became abundantly clear a week later when
Plaintiff met with La venue, and made the following statements:
"The Board is not going to consider your request until after we have an appraisal done, which will be more than a month from now."
"Shareholders have no rights to company confidential information. You don't have any right to examine the books."
"You can come to the Board meeting and make your own case for why you should be paid out sooner than 1 0 years. You should tell us what concessions you are willing to make to receive an expedited payout. You should also show some humility."
"You should not be hung up on the one-time payout of some shareholders. Those · were different situations."
"You should get over this shareholder entitlement mentality and the idea that shareholders are entitled to receive a share of the profits."
PLAINTIFF'S VERJFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER -3
and records on April26, 2010 at corporate office; a true and correct copy of which is
attached hereto as Exhibit 3. The request for inspection stated:
The purpose of Mr. inspection is as follows: to determine the value of his shares, to determine the financial status and performance of the corporation, and to investigate the possibility of mismanagement, breach of fiduciary duty or other wrongdoing by its current and recent management.
Mr. intends to inspect all documents relevant to these purposes which will include without limitation, monthly and annual income statements and balance sheets from 2002 to present month, records showing all bonuses paid to shareholders and senior management 2005 to present, records showing all other disbursements, payments, loans, compensation of any sort paid to shareholders or senior management 2005 to present, all minutes and resolutions of shareholder and board of director minutes with all attachments thereto, shareholder ledger showing all transfers and redemptions, and all documents relating to any prior redemption, purchase, or payout in exchange for shares in the company.
23. The contents of the April 23, 2010 written demand were delivered electronically on
April 23, 2010 by e-mail to Bob counsel for The written demand stated a
proper purpose and the date, time and place at which Plaintiff intended to commence the
inspection were reasonable.
24. In April 23, 2010, counsel responded to the request for inspection of the
corporate documents and stated, "If your client or any of his representatives appear at the
Company Monday, or at any other time without invitation from Dr. or counsel on his
behalf, they will be considered to be trespassing." See a true and correct copy of the e-mail from
Bob Powell to Joe Fulwiler dated April 23, 2010 and attached as Exhibit 4. Thus, Defendant
both personally and through counsel, not only denied the existence of Plaintiff's
inspection rights, refused to comply with Plaintiff's inspection rights, but actually made a very
thinly veiled threat of arrest and criminal prosecution if Plaintiff attempted to exercise his
statutory rights pursuant to a proper request.
PLAINTIFF'S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER -7