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 E

Page 1 of 4

Alinder, Zachary J.
From:

Jacqueline K. S. Lee [[e-mail]]

Sent:

Thursday, March 24, 2011 11:27 AM

To:

Alinder, Zachary J.

Cc:

Nelson, Daniel A.; 'Gregory Castanias'; Howard, Geoff; 'Jane L Froyd'; 'Kenneth J. Krupsky'; Schnall,
Matthew D.; 'Nicole Massey'; 'Rachel L. Rawson'; Brundage, Robert A.; Jason McDonell

Subject: RE: Oracle v SAP -- Follow up wrt Revised Draft Agreement
Zac,
Contrary to y
Plaintiffs
y your assertion, this is not a "reversal" of Defendants' position; both Plaintiffs and Defendants have
,
f
p
;
p p
made clear at each meet and confer that the proposals discussed have been and are subject to client approval - a
point that both parties emphasized in light of the complexity of these issues. Although Defendants have been and
remain ready and willing to continue discussing these issues, given the late hour, we cannot rely on the Court
having the opportunity to review and sign an order extending the stay before the close of business today. (We
also note that Plaintiffs rejected Defendants' proposal earlier this week to submit a request in advance of the
expiration of the current stay that the Court extend the stay to permit the parties to continue their negotiations.)
Thus, in view of the Court-ordered deadline, Defendants must file their Rule 62 motion today, contested or not, to
preserve their rights. However, Defendants remain open to continuing to discuss these issues with Oracle after
the filing of the motion in the hope of resolving this matter without the Court's intervention.
Regards,
Jaci
Jacqueline Lee
Associate
Jones Day - Silicon Valley
1755 Embarcadero Road
Palo Alto, California 94303
Direct Phone: [phone]
Fax: [phone]

From:

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

To:

"'Rachel L. Rawson'" <[e-mail]>

Cc:

"Nelson, Daniel A." <[e-mail]>, "'Gregory Castanias'" <[e-mail]>, "Howard, Geoff"
<[e-mail]>, "'Jane L Froyd'" <[e-mail]>, "'Jacqueline K. S. Lee'" <[e-mail]>, "'Kenneth J.
Krupsky'" <[e-mail]>, "Schnall, Matthew D." <[e-mail]>, "'Nicole Massey'" <[e-mail]>,
"Brundage, Robert A." <[e-mail]>

Date:

03/24/2011 10:31 AM

Subject:

RE: Oracle v SAP -- Follow up wrt Revised Draft Agreement

Rachel,
This is a significant reversal from the Parties' numerous recent meet and confers and the language that both sides
have negotiated over the past week. Given the serious and potentially enormous tax consequences, this will
require detailed review at many levels. We will not likely be able to get all of the necessary parties to review and
consider this change, let alone approve it, in the time we have left. In light of this significant change in SAP's
position, and given the late hour of the proposed change, Oracle will agree to extend the temporary stay and the

4/13/2011

Page 2 of 4

filing date by two more weeks to enable the Parties to evaluate and discuss further. Please confirm, and I will
revise the prior draft stipulation to reflect the current status and send it for your review.
Best regards,
Zac

From: Rachel L. Rawson [mailto:[e-mail]]
Sent: Thursday, March 24, 2011 9:32 AM
To: Alinder, Zachary J.
Cc: Nelson, Daniel A.; 'Gregory Castanias'; Howard, Geoff; 'Jane L Froyd'; 'Jacqueline K. S. Lee'; 'Kenneth J.
Krupsky'; Schnall, Matthew D.; 'Nicole Massey'; Brundage, Robert A.
Subject: RE: Oracle v SAP -- Follow up wrt Revised Draft Agreement
Zac,
After further consideration and reflection and given the requirement to file today, SAP has decided that it cannot
accept Oracle's proposed indemnity language and that it must proceed with a motion requesting that the Court
approve Defendants' proposed escrow agreement as security for the judgment. The form of escrow agreement
we will propose contains the same QSF language that we sent you last week, providing for the tax treatment of
the escrow fund as a QSF, with no grantor trust election and no tax indemnity. We believe this is the most
appropriate form of security for both parties under all of the circumstances and wanted to give Oracle a last
opportunity to agree to it. Further, the proposed escrow agreement retains the proposed language in Section 8,
pursuant to which Oracle would indemnify JP Morgan for specific losses solely resulting from Oracle's conduct.
Even if we do not reach agreement today, we will be pleased to continue our discussions later. Attached is the
form of escrow agreement that we plan to propose, together with a copy marked to show changes from the
version I sent last night.
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:

"'Rachel L. Rawson'" <[e-mail]>

Cc:

"Nelson, Daniel A." <[e-mail]>, "'Gregory Castanias'" <[e-mail]>, "Howard, Geoff"
<[e-mail]>, "'Jane L Froyd'" <[e-mail]>, "'Jacqueline K. S. Lee'" <[e-mail]>, "'Kenneth J.
Krupsky'" <[e-mail]>, "Schnall, Matthew D." <[e-mail]>, "'Nicole Massey'" <[e-mail]>,
"Brundage, Robert A." <[e-mail]>

Date:

03/24/2011 11:50 AM

Subject:

RE: Oracle v SAP -- Follow up wrt Revised Draft Agreement

Rachel,
I intend to respond to your email from last night as well. But, in the interim, can you let me know what specific
topics you'd like to discuss on the call, so I can figure out who needs to be on the call and availabilities later this
morning or early afternoon?

4/13/2011

Page 3 of 4

Thank you,
Zac

From: Rachel L. Rawson [mailto:[e-mail]]
Sent: Thursday, March 24, 2011 8:41 AM
To: Rachel L. Rawson
Cc: Nelson, Daniel A.; 'Gregory Castanias'; Howard, Geoff; 'Jane L Froyd'; 'Jacqueline K. S. Lee'; 'Kenneth J.
Krupsky'; Schnall, Matthew D.; 'Nicole Massey'; Brundage, Robert A.; Alinder, Zachary J.
Subject: RE: Oracle v SAP -- Follow up wrt Revised Draft Agreement
Zac,
As a follow up to last night's email, we'd like to propose a further meet and confer with you this morning (pacific
time). Please let us know what time you might be available.
Best Regards
Rachel

-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*
Rachel Rawson | Jones Day | 901 Lakeside Avenue
Cleveland, OH | 44114| 216-586-7276 (ofc) |216-406-3472 (cell)
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4/13/2011