Statement made by Cristian Turrini....some of the words didn't copy exactly correctly....
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CALYPSO WIRELESS, INC., and
DRAGO DAIC
Plaintiffs,
v.
T-Mobile USA, Inc.
Defendant.
§§§§§§§§§§
Case No. 2:08-CV-00441
Jury Demanded
DECLARATION OF CRISTIAN TURRINI
IN SUPPORT OF CALYPSO’S RESPONSE IN OPPOSITION
TO MOTION TO SUBSTITUTE A PARTY AND
TEMPORARILY STAY THE CASE
I, Cristian Turrini, declare and state as follows:
1. My name is Cristian Turrini. I am over the age of 18 and competent to make this
declaration. The facts stated in this declaration are within my personal knowledge and
are true and correct. I would testify to the matters stated herein under oath if called upon
to do so.
2. I am currently CEO of Plaintiff Calypso Wireless, Inc. (“Calypso”), a position I have
held since May 12, 2008 as well as President, a position I have held since July 28, 2009.
I am also a shareholder and member of the board of directors for Calypso. I have been on
the board of directors since May 12, 2008.
3. A true and correct copy of the Amended and Restated Settlement Agreement (the “2009 Agreement”), allegedly executed on April 3, 2009, is attached hereto as Exhibit A. The 2009 Agreement was never agreed to by Calypso, and never properly executed.
4. In order to enter into a contract such as the 2009 Agreement, the majority of Calypso’s
board of directors would have had to consent to the contract, and a board resolution
would have to have been passed. Neither of these occurred.
5. In April 2009, Calypso’s board of directors included myself, Calypso then President
Richard Pattin, and Kathy Daic (Plaintiff Drago Daic’s wife). Mrs. Daic resigned on
April 3, 2009.
6. Mrs. Daic did not participate in the first scheduled meeting stating later via email that she had no internet connection. Mrs. Daic later waived notice of the second board meeting via email. True and correct copies of e-mails from Mrs. Daic to me and Mr. Pattin, dated April 2, 2009, 7:48 p.m. and April 3, 2009, 12:08 a.m., in which Mrs. Daic stated why she failed to attend the first meeting and on the second waived notice are attached hereto as Exhibits B and C. I learned from Mr. Pattin that Mrs. Daic would be abstaining from participating in the negotiation and consideration of the 2009 Agreement, leaving that to me and Mr. Pattin. From the time I became aware of the document 48 hours before and up to the “deadline of April 3, 2009, Mr. Pattin and I reviewed the draft of the 2009 Agreement prepared by Drago Daic (or on his behalf). We found the terms to be unreasonable, one-sided, and impossible to meet. A true and correct copy of an e-mail
from Mr. Pattin to me and Mrs. Daic, dated April 1, 2009, 6:49 p.m., in which Mr. Pattin
acknowledged that Mrs. Daic would “sustain [sic] from voting on this matter,” is attached
hereto as Exhibit D.
7. Mr. Pattin and I provided revised drafts of the 2009 Agreement to Mr. Daic’s
representatives, which drafts contained revisions that we felt we could live with. Mr.
Daic rejected each of our proposals, explaining that he would only sign the version that
he had originally drafted. A true and correct copy of an e-mail chain between Mr. Pattin
and Cyndi Rusnak (Mr. Daic’s represenative) is attached hereto as Exhibit E. These emails show Ms. Rusnak repeatedly stating that Mr. Daic refused to accept any changes
whatsoever.
8. Mr. Daic imposed a deadline of 5:00 p.m. Central on April 3, 2009 to sign the contract.
At approximately 4:30 p.m. Central time that day, I wrote an e-mail to Mr. Pattin in
which I informed him that I, as one of two participating members of Calypso’s board of
directors, did not consent to the signing of the 2009 Agreement. A true and correct copy
of that e-mail is attached hereto as Exhibit F. I sent the e-mail from Florida, and so the
time stamp on the e-mail appears in Eastern time.
9. Notwithstanding my clear, express, and written indication that I did not consent, and
without board approval, Mr. Pattin apparently went ahead and signed the 2009
Agreement. See Exhibit A.
10. Mr. Daic was aware that Calypso needed board approval and a board resolution in order to enter into the 2009 Agreement, and he knew that, without my consent, Calypso would not have that requisite board approval. See Exhibit E (e-mail from Mr. Pattin to Ms. Rusnak, April 2, 2009, 4:24 p.m.) (“Cristian will not sign the agreements the way they read currently. Without Cristian, Calypso doesn’t have board approval.”).
11. Mr. Daic insisted that Calypso agree to his terms, and threatened to foreclose on the ‘923 Patent, and, in conjunction with Mr. Jimmy Williamson, to refuse to cooperate as a
proper plaintiff in the current action, and to enforce his $100+ Million default judgment
against us if we did not. A true and correct copy of an e-mail from Mr. Pattin to me and
Mrs. Daic, dated April 2, 2009, 11:06 a.m., is attached hereto as Exhibit G. This e-mail
relates part of Mr. Daic’s threat: “f we [Calypso’s board] do not approve this
agreement [the 2009 Agreement] then the patent will not be turned over to Calypso and
T-Mobile will make a motion to dismiss, thus Daic will foreclose on the patent,” and
acknowledges that Calypso was under extreme duress to sign off on Mr. Daic’s proposed
deal: “I know it is not the best deal for Calypso but, it will give Calypso an opportunity to
survive and move forward. Calypso is in a tight spot currelltly, we are with no time nor money."
12. The 2009 Agreement purports to require, among other things, that Calypso deliver 13.4 Million shares of Calypso stock. At the 'lillie the 2009 Agreement was allegedly
executed, Calypso had only approximately 2.5 Million shares available for distribution. The only way to increase this number would have been to call a shareholder meeting. This would req~Jire a week to prepare a 14A SEC required filing, a 10 working day review by the SEC and, if approved by the SEC with no revisions (Rare), another 10 days of minimlUll required notioe for a shareholders meeting (60 days or more is typical) then, if all increase in authori:zed shares is granted (ONLY the shareholders can increase the authorized shares), then another minimum of a week for the transfer Agelit to issue the shares. The whole process would take a minimum of 38 days and the typical tiliieframe is measured hl months, sometimes years, rather than days. It would have beeli impossible for us to comply with this requirement. BecatlSe his wife was 011 the board, and becallse Mr. Daic was himself a shareholder (who oftell expressed his concerns about not wanting his shares to be diluted), Mr. Daio was or should have been aware of these issues. In fact, it is my suspicion that Mr. Daic inoluded this provision in the 2009 Agreement solely so that he could set Calypso up to default and thereby obtain Calypso's patents.
13. Regarding the restrictions On the 7 Million shares, Calypso Wireless was also unable to provide on opinion letter to Messrs. Daic and Williamson because Calypso was precluded from raising the funds necessary to do so as a result of their actions. The value of those shares, however, are minimal, but Messrs Daic and Williamson have not attempted to mitigate their damages in any way. In fact, they are and always have been able to lift the restriction on their own; there exists no requirement that Calypso perfOlID this for them. Additionally, Drago and Williamson did 110t provide notice of this alleged default until well after they had already again clouded the title to the patents. In other wordS they assigned themselves the patents, then deolared default for this item.
14. I declare pursuant to 28 U.S.C. § 1746 and under penalty of perjury ~"!Q.~r the laws of the United States that the foregoing is trlle alld correct. "".~---'—
I 5. Executed this 3rd day of December, 2009, at Salt Lake Cristian
