Oracle Corporation et al v. SAP AG et al

Filing 1060

Declaration of Zachary J. Alinder in Support of 1059 Opposition/Response to Motion, For Stay of Judgment and Approval of Proposed Security filed byOracle International Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 1059 ) (Alinder, Zachary) (Filed on 4/13/2011)

EXHIBIT C

Page 1 of 3

Alinder, Zachary J.
From:

Rachel L. Rawson [[e-mail]]

Sent:

Wednesday, March 16, 2011 5:07 AM

To:

Alinder, Zachary J.

Cc:

'Gregory Castanias'; Howard, Geoff; 'Jane Froyd'; Alinder, Zachary J.

Subject:

RE: SAP v Oracle - Escrow Agreement

Attachments: MoneyMarketDepositAccount_JPM 10 09.pdf; CashCompensationAccount_JPM_WHEM1.pdf;
Change-Pro Redline - NYI_4349222_5 and NYI_4349222_6.doc
Zac,
Upon further consideration and in an effort to finalize the escrow negotiations, Defendants propose the following
two-part proposal:
(1) Defendants will give up the election to treat the escrow as a qualified settlement fund (i.e., it will simply be a
plain vanilla escrow) and have proposed additional language in the escrow agreement itself (see attached redline)
making it clear that as between the parties to the escrow agreement all items of income are allocable to SAP.
p
g
Defendants believe that the IRS will respect this designation and that this should alleviate Oracle's concern
regarding the tax implications of a QSF and its request for a tax indemnity.
(2) The parties to the agreement language remains: "(i) SAP America, Inc., a Delaware corporation, (ii)
TomorrowNow, Inc., a Texas corporation, (iii) SAP AG, a company organized under the laws of Germany, as
parent of the group of affiliated companies including TomorrowNow, Inc. and SAP America, Inc. (“SAP”), "
We ask that you discuss this proposal with your client right away and let us know when your are available to meet
and confer, either later today or Thursday morning. We would also make our tax folks available to speak with
your tax folks.
Please note that the attached blackline also contains some additional clean-up comments requested by JPMC.
I've also attached the "fact sheets" that describe the MMDA and Cash Compensation Accounts.
Best Regards
Rachel

-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*
Rachel Rawson | Jones Day | 901 Lakeside Avenue
Cleveland, OH | 44114| 216-586-7276 (ofc) |216-406-3472 (cell)
[e-mail]

From:

"Alinder, Zachary J." <[e-mail]>

To:

"Alinder, Zachary J." <[e-mail]>, "'Rachel L. Rawson'" <[e-mail]>

Cc:

"'Gregory Castanias'" <[e-mail]>, "'Jane Froyd'" <[e-mail]>, "Howard, Geoff"
<[e-mail]>

Date:

03/14/2011 08:59 PM

Subject:

RE: SAP v Oracle - Escrow Agreement

4/13/2011

Page 2 of 3

Hi Rachel,
This message follows-up on your question about whether, if SAP were to treat the
escrow as a grantor trust rather than a QSF, that would resolve Oracle's indemnity
concerns. While we are open to new suggestions and have begun looking into this
question, it would be very helpful if you could send the draft language that you
would propose to change from your most recent draft escrow agreement to effectuate
this proposal.
Best regards,
Zac

Zachary J. Alinder
Bingham McCutchen LLP
Three Embarcadero Center | San Francisco, CA 94111
T [phone] | F [phone]
-----Original Message----From: Alinder, Zachary J.
Sent: Friday, March 11, 2011 12:23 PM
To: 'Rachel L. Rawson'
Cc: Gregory Castanias; Jane Froyd
Subject: RE: SAP v Oracle - Escrow Agreement
Rachel,
Given that this will need to be discussed internally here and with the client, I
think it is unlikely we'll be able to meet and confer on Monday morning. However,
we will look into this question and see if we can get a response before then.
Best regards,
Zac
-----Original Message----From: Rachel L. Rawson [mailto:[e-mail]]
Sent: Friday, March 11, 2011 8:57 AM
To: Alinder, Zachary J.
Cc: Gregory Castanias; Jane Froyd
Subject: SAP v Oracle - Escrow Agreement

Zac,
We are
Escrow
we are
Oracle

continuing to discuss with
(relating to the indemnity
seeking a clarification on
arises out of the election

our client the provisions of Section 9(b) of the
for taxes which your client requested). However,
one item - it appears as though the concern from
to treat the Escrow as a QSF.

Therefore, if SAP were to agree not to elect to treat the Escrow as a QSF but
instead establish it as a grantor trust, would this eliminate the need from your
client for the tax indemnity? If possible, we'd like to be able to give our client
an answer on that by Monday. If you're available, we suggest a meet and confer midmorning (11 or 11:30 am, NY time) on Monday.
We are also continuing to work with JPM to get us the description of the
investments.
Best Regards
Rachel

4/13/2011

Page 3 of 3

Rachel Rawson
[e-mail]
216 586 7276 ofc
216 406 3472 cell
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4/13/2011