Preview
(FILED: NEW YORK COUNTY CLERK 1170572014 03:52 PM INDEX NO. 653358/2014
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/05/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DUGGAL DIMENSIONS LLC, Index No 653358/14
Plaintiff,
- against —
PEEKANALYTICS, INC. d/b/a STATSOCIAL, a
Delaware Corporation, MICHAEL HUSSEY, AFFIRMATION OF EMERGENCY
DONALD DODGE, JOSEPH SAVIANO, BRETT:
SCHNITTLICH, and MARK ROSENBLATT,
Defendants.
ADAM J. RADER, a member of the Bar of the State of New York, hereby affirms under
penalty of perjury and says
1 Iam a member of the firm of Eaton & Van Winkle, LLP, attorneys for Plaintiff in
this action.
2 The instant emergency application seeks a temporary restraining order. As set
forth in the moving papers, the emergency application seeks to enjoin and restrain Defendants
from blundering corporate assets and corporate waste. A copy of the Verified Complaint in this
action is annexed hereto as Exhibit A.
3 In view of the time sensitivity involved, Plaintiff requests expedited processing of
the accompanying Order To Show Cause on an urgent basis.
4 Because this emergency application seeks to enjoin an imminent sale of
Defendant PeekAnalytics, and the action has not yet been commenced. Plaintiff requests
cceptance of the filing of these papers prior to electronic filing. Plaintiff also requests that
these papers be submitted ex parte. Notice to the Defendants is likely to prompt Defendants to
{00035368.DOC;1}
expedite the improper merger of PeekAnalytics, Inc. (“Peek Analytics” or “the Company”) by
illegal means involving self-dealing, minority shareholder oppression and plundering of
corporate assets.
5 Plaintiff Duggal Dimensions, Inc. holds a 36.27% ownership interest in defendant
PeekAnalytics, Inc. Compl. 2.
Defendant Michael Hussey also holds a 36.27% ownership interest in defendant
PeekAnalytics. Compl. { 4.
A proposed merger between PeakAnalytics with 1Mind Inc. is imminent. A true and
correct copy of an October 24, 2014 letter to Helena Sullivan, Esq., plaintiffs’ counsel,
from Michael Hirschberg, Esq., counsel for PeekAnalytics is annexed hereto as Exhibit
B. The letter confirms that the merger is imminent.
When plaintiff's President, Baldev Duggal, raised issues questioning whether the
proposed merger was in PeekAnalytics’ best interests he was improperly removed from
the PeekAnalytics’ Board, without notice. Compl. 20.
Part of the merger proposal involves granting additional stock options to members of the
management and employees of both PeekAnalytics’ and 1Mind. If the merger is
consummated, Plaintiff's interest in the Company would be reduced to 1%. This violates
Section 2.01 of the Stockholder’s Agreement. A true and correct copy of the
Stockholder’s Agreement is annexed hereto as Exhibit C.
10. While the merger would serve to dilute plaintiff's in the company, defendants Hussey
and Dodge’s shares would not be diluted, because they have been and/or will be granted
stock options as part of the merger. Compl. §{] 20; 27.
11. The proposed transaction represents blatant self-dealing. Defendant Dodge’s family
{00035368.DOC;1}
controls 1Mind, the proposed merger partner. It was founded by Mr. Dodge’s sons and
the CEO of 1Mind is Mr. Dodge’s wife, Holly Dodge. Compl. ff] 19; 27.
12. Requested information has not been provided, in breach of defendants’ fiduciary duties
and further demands are futile. Compl. § 22.
13 Without Board approval, defendants have granted a security interest in the Company
compromising the interests of all shareholders and diminishing the value of the company.
The Board’s approval was limited to granting an unsecured note. See, Affidavit of
Baldev Duggal (Exhibits 1 and 2).
14 The proposed self-dealing transaction is part of a larger schemed to dilute plaintiff's
interest in the Company and to push through a merger without proper disclosure of
information to shareholders. The improper granting of a security interest in the Company
is a grave breach of fiduciary duty. The proposed self-dealing transaction must be
immediately stopped to allow for the required disclosure of necessary information and
preservation of the status quo in order to prevent further breaches of defendants’
fiduciary duty. If the transaction proceeds, the harm will be irreparable as unwinding the
illicit transaction may well be impossible. Court scrutiny is necessary to preserve the
status quo and to prevent defendants from engaging in self-dealing conduct in violation
of their fiduciary duties.
15 Defendants have acted as a group of controlling shareholders to dominate and control the
corporation and exert their will over it and its Board of Directors to benefit themselves to
the exclusion and detriment of the minority shareholders.
16. Defendants have wrongly removed Mr. Duggal from the Board, without notice and they
have improperly granted a security interest in the Company when they were only
{00035368.DOC;1}
authorized to issue an unsecured note. They have also operated under a veil of secrecy,
refusing to provide required information and notice. They are now on the verge of
concluding an imminent merger with a company controlled by family members of one of
the defendants. That merger would improperly dilute plaintiffs’ shares, as well as those
of other shareholders who cannot benefit from the self-dealing which defendants intend
to utilize to grant themselves stock options.
17 For the reasons above, we respectfully request that this application for a temporary
restraining order be considered on an ex parte basis, without notice to defendants. Notice
to defendants is likely to moot the relief sought by causing defendants to expedite the
illicit merger transaction.
18. No prior request for the same or similar relief as set forth herein has been made
before this or any other court.
Dated: New York, NY
November 3, 2014
Adam J. r
{00035368.DOC;1}
Preview
(FILED: NEW YORK COUNTY CLERK 1170572014 03:52 PM INDEX NO. 653358/2014 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/05/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DUGGAL DIMENSIONS LLC, Index No 653358/14 Plaintiff, - against — PEEKANALYTICS, INC. d/b/a STATSOCIAL, a Delaware Corporation, MICHAEL HUSSEY, AFFIRMATION OF EMERGENCY DONALD DODGE, JOSEPH SAVIANO, BRETT: SCHNITTLICH, and MARK ROSENBLATT, Defendants. ADAM J. RADER, a member of the Bar of the State of New York, hereby affirms under penalty of perjury and says 1 Iam a member of the firm of Eaton & Van Winkle, LLP, attorneys for Plaintiff in this action. 2 The instant emergency application seeks a temporary restraining order. As set forth in the moving papers, the emergency application seeks to enjoin and restrain Defendants from blundering corporate assets and corporate waste. A copy of the Verified Complaint in this action is annexed hereto as Exhibit A. 3 In view of the time sensitivity involved, Plaintiff requests expedited processing of the accompanying Order To Show Cause on an urgent basis. 4 Because this emergency application seeks to enjoin an imminent sale of Defendant PeekAnalytics, and the action has not yet been commenced. Plaintiff requests cceptance of the filing of these papers prior to electronic filing. Plaintiff also requests that these papers be submitted ex parte. Notice to the Defendants is likely to prompt Defendants to {00035368.DOC;1} expedite the improper merger of PeekAnalytics, Inc. (“Peek Analytics” or “the Company”) by illegal means involving self-dealing, minority shareholder oppression and plundering of corporate assets. 5 Plaintiff Duggal Dimensions, Inc. holds a 36.27% ownership interest in defendant PeekAnalytics, Inc. Compl. 2. Defendant Michael Hussey also holds a 36.27% ownership interest in defendant PeekAnalytics. Compl. { 4. A proposed merger between PeakAnalytics with 1Mind Inc. is imminent. A true and correct copy of an October 24, 2014 letter to Helena Sullivan, Esq., plaintiffs’ counsel, from Michael Hirschberg, Esq., counsel for PeekAnalytics is annexed hereto as Exhibit B. The letter confirms that the merger is imminent. When plaintiff's President, Baldev Duggal, raised issues questioning whether the proposed merger was in PeekAnalytics’ best interests he was improperly removed from the PeekAnalytics’ Board, without notice. Compl. 20. Part of the merger proposal involves granting additional stock options to members of the management and employees of both PeekAnalytics’ and 1Mind. If the merger is consummated, Plaintiff's interest in the Company would be reduced to 1%. This violates Section 2.01 of the Stockholder’s Agreement. A true and correct copy of the Stockholder’s Agreement is annexed hereto as Exhibit C. 10. While the merger would serve to dilute plaintiff's in the company, defendants Hussey and Dodge’s shares would not be diluted, because they have been and/or will be granted stock options as part of the merger. Compl. §{] 20; 27. 11. The proposed transaction represents blatant self-dealing. Defendant Dodge’s family {00035368.DOC;1} controls 1Mind, the proposed merger partner. It was founded by Mr. Dodge’s sons and the CEO of 1Mind is Mr. Dodge’s wife, Holly Dodge. Compl. ff] 19; 27. 12. Requested information has not been provided, in breach of defendants’ fiduciary duties and further demands are futile. Compl. § 22. 13 Without Board approval, defendants have granted a security interest in the Company compromising the interests of all shareholders and diminishing the value of the company. The Board’s approval was limited to granting an unsecured note. See, Affidavit of Baldev Duggal (Exhibits 1 and 2). 14 The proposed self-dealing transaction is part of a larger schemed to dilute plaintiff's interest in the Company and to push through a merger without proper disclosure of information to shareholders. The improper granting of a security interest in the Company is a grave breach of fiduciary duty. The proposed self-dealing transaction must be immediately stopped to allow for the required disclosure of necessary information and preservation of the status quo in order to prevent further breaches of defendants’ fiduciary duty. If the transaction proceeds, the harm will be irreparable as unwinding the illicit transaction may well be impossible. Court scrutiny is necessary to preserve the status quo and to prevent defendants from engaging in self-dealing conduct in violation of their fiduciary duties. 15 Defendants have acted as a group of controlling shareholders to dominate and control the corporation and exert their will over it and its Board of Directors to benefit themselves to the exclusion and detriment of the minority shareholders. 16. Defendants have wrongly removed Mr. Duggal from the Board, without notice and they have improperly granted a security interest in the Company when they were only {00035368.DOC;1} authorized to issue an unsecured note. They have also operated under a veil of secrecy, refusing to provide required information and notice. They are now on the verge of concluding an imminent merger with a company controlled by family members of one of the defendants. That merger would improperly dilute plaintiffs’ shares, as well as those of other shareholders who cannot benefit from the self-dealing which defendants intend to utilize to grant themselves stock options. 17 For the reasons above, we respectfully request that this application for a temporary restraining order be considered on an ex parte basis, without notice to defendants. Notice to defendants is likely to moot the relief sought by causing defendants to expedite the illicit merger transaction. 18. No prior request for the same or similar relief as set forth herein has been made before this or any other court. Dated: New York, NY November 3, 2014 Adam J. r {00035368.DOC;1}