Oracle Corporation et al v. SAP AG et al
Declaration of Zachary J. Alinder in Support of 649 MOTION for Partial Summary Judgment filed byOracle International Corporation, Oracle USA Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54 - 1, # 55 Exhibit 54 - 2, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63, # 65 Exhibit 64, # 66 Exhibit 65, # 67 Exhibit 66, # 68 Exhibit 67, # 69 Exhibit 68, # 70 Exhibit 69, # 71 Exhibit 70, # 72 Exhibit 71, # 73 Exhibit 72, # 74 Exhibit 73, # 75 Exhibit 74, # 76 Exhibit 75, # 77 Exhibit 76, # 78 Exhibit 77, # 79 Exhibit 78, # 80 Exhibit 79, # 81 Exhibit 80, # 82 Exhibit 81, # 83 Exhibit 82, # 84 Exhibit 83, # 85 Exhibit 84, # 86 Exhibit 85, # 87 Exhibit 86, # 88 Exhibit 87, # 89 Exhibit 88, # 90 Exhibit 89, # 91 Exhibit 90, # 92 Exhibit 91, # 93 Exhibit 92, # 94 Exhibit 93, # 95 Exhibit 94, # 96 Exhibit 95, # 97 Exhibit 96, # 98 Exhibit 97, # 99 Exhibit 98, # 100 Exhibit 99, # 101 Exhibit 100, # 102 Exhibit 101, # 103 Exhibit 102, # 104 Exhibit 103, # 105 Exhibit 104, # 106 Exhibit 105, # 107 Exhibit 106, # 108 Exhibit 107, # 109 Exhibit 108, # 110 Exhibit 109, # 111 Exhibit 110, # 112 Exhibit 111, # 113 Exhibit 112, # 114 Exhibit 113, # 115 Exhibit 114, # 116 Exhibit 115, # 117 Exhibit 116, # 118 Exhibit 117)(Related document(s) 649 ) (Howard, Geoffrey) (Filed on 3/3/2010)
Oracle Corporation et al v. SAP AG et al
Doc. 657 Att. 62
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Message From: Sent:
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White, M a r k [ / O = S A P / O U = A M E R I C A 1 / C N = R E C I P I E N T S / C N = 0 0 0 0 0 0 1 2 0 0 3 1 ] 11/26/2007 4:04:58 PM Tuman, Anne [/O=SAP/OU=AMERICA1/CN=RECIPIENTS/CN=000000127440]; Breuer, Martin ~O=SAP/OU=EUROPE1/CN=RECIPIENTS/CN=000000114001]; B r u b a k e r , B r a d [ / O = S A P / O U = A M E R I C A 1 / C N = R E C I P I E N T S / C N = 0 0 0 0 0 0 0 4 3 6 6 4 ] ; L a v a n , Patricia ~O=SAP/OU=AMERICA 1 / C N = R E C I P I E N T S / C N = 0 0 0 0 0 0 0 5 B 6 1 2 ] FW: TomorrowNow Employee Communication image001.gif
F r o m : Mandy Wheeler [mailto:Mandy-Wheeler@tomorrownow.com] S e n t : Monday, November 26, 2 0 0 7 4 : 4 9 PM To: firstname.lastname@example.org; White, Mark; Tom Nolan S u b j e c t : TomorrowNow Employee Communication
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Below please find an overview o f last week's communications regarding TomorrowNow. The purpose o f this communication i s to ensure that o u r TN team members are fully and timely informed. Please note that you should not forward this message to anyone either internally within TomorrowNow (since all employees are copied) and externally. This should NOT be forwarded to partners, customers, competitors, or SAP employees. The letter to customers sent by Andrew Nelson, dated N o v e m b e r 1, 2007 was improperly sent to a t least one member o f the press. While it is currently unknown h o w this occurred, this i s an example o f sensitive information about our company that should not be disclosed to any unauthorized person or entity.
As the press release indicated, SAP is considering all options f o r TomorrowNow including possible sale. I would point o u t that a t this point in time, there should be no o t h e r interpretation o r speculation o f this statement. Below please find the . options. a sale o f the business selling or spinning o f f parts o f the business transfer o f contracts back to Oracle o r to some other third party c o n t i n u a t i o n o f the business
A sale o f the business has some unique challenges. TomorrowNow is a defendant (as is SAP AG and SAP America) in a major lawsuit by its number one competitor. TomorrowNow is also the subject o f an active investigation by the Department o f Justice. Both o f these investigations will require TomorrowNow to retain the assets (computers, laptops, servers, etc.), so a n y potential buyer will have to fund the IT infrastructure which could make a purchase significantly more expensive. SAP would also need to come to an agreement with a buyer regarding the future liabilities o f the business. Other important factors to consider in a potential acquirer is whether they truly have the funding to serve the current customers o f TomorrowNow going forward, have the fu nding to invest in the future growth for the business, and ensure there is long-term career potential for the employees o f TomorrowNow. There are several companies that do provide similar services as· TomorrowNow that might not be able to meet these criteria and so a sale to them would be extremely unlikely. We would also want to ensure that the senior management team o f any buyer is a strong one. Finally, we would want a n y acquirer to have a business model as close as possible to ours in order to limit TomorrowNow's or SAP's future liability. Selling o r spinning o f f parts o f the business is also a n option with several challenges. The same funding and liability challenges would need to be resolved. The concerns around customers and employees are also the same as mentioned above. In addition, a n y acquirer would need to have adequate business experience regarding the financial and legal
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requirements. Finally, all o f these would also be considered against whether this hinders o u r ability to sell the entire business or continue the business intact in the future. It is not a simple decision to transfer the business to Oracle or some other third party. There are many customers who d o not w a n t to d o business with Oracle in a support-only mode as they may not receive the value that they are getting from TomorrowNow. Many customers are on releases that are no longer supported by Oracle and so going back to Oracle m i g h t require a purchase o f a new license/new implementation o r some minor level o f implementation around the latest release. This could be expensive for either the customer o r TomorrowNow to ensure this transition. We have no indications that Oracle wants these customers back. We have no indications that any o t h e r third party wants to have the contracts transferred to them and whether our customers would permit it. Relative to the on-going litigation, o u r next Case Management Conference with the federal judge is scheduled for F e b r u a r y , 2 0 0 8 . A t that time I would anticipate that Oracle will request more depositions and an extension in discovery as well as moving back the date o f the trial. The current trial date is February, 2009 with discovery scheduled to end in July, 2008. I mention this because i f we find that the three options above are not possible, it may be t h a t T o m o r r o w N o w continues as is. M a n y o f our current customers have expiration dates in their contract closer to the end o f 2008. The closer that we g e t to the trial date with a continuation o f the business and having so many customers locked into us until the end o f 2008 are a couple o f reasons why we would consider keeping the business. This is why SAP announced that i t w a s reviewing alternatives. Organization
I a m pleased to announce that Martin Breuer, Senior Vice President for the SAP Custom Development Group, will be joining the TN leadership team. As o f today, Shelly Nelson, John Tanner, Gordon Robinson, Greg Nelson and Mark Kreutz will report directly to Martin. Martin is a graduate o f the University o f Cologne and joined SAP in 1989 and has held various senior management positions in sales operations, business development and marketing. In 1997, Martin was a member o f the SAP Asia Pacific management team. In 2001, Martin became Managing Director o f SAP Hosting and subsequently ran the Consumer Products/Life Sciences Global Industry Business Unit. From that position, Martin w a s the Senior Vice President for Global Sales Operations and Global Initiatives reporting to Leo Apotheker until 2005. look forward to Martin's experience and assistance, and we will introduce him tomorrow in Denver.
Bob Ludlum, Hendrik Zwart, Albert van Wissen, Mel Gadd, Lesley Loftus and Tom Nolan and their respective organizations will report to me along with Martin.
Project Level Set/Priorities
As o f last week, we determined that our first priority was to ensure customers had outstanding service through January, 2008. We will be reaching out to those customers who have not yet made the transition to remote support to find a date that is more convenient to them a s well as to understand their business constraints regarding remote support. We have to go to remote support, but we also need to h o n o r our contracts and provide outstanding customer support. For those o f you w h o have pushing hard to complete Project Level Set, I thank you and acknowledge your hard work and the difficult d i s c u s s i o n s w i t h s o m e customers. Compensation/Performance A s I indicated last week, 2007 bonuses (anticipated to be paid out at the end o f February, 2008) are not affected by the announcements o f last week. They will still be paid based upon the business perforrnance/metrics already communicated to you. As I indicated, I will lobby f o r additional bonus in recognition o f the difficult year i t has been. 2007 calibration will continue as planned. I believe it is very important for each employee to receive feedback on their performance . 2 0 0 8 performance management plans will need to be finalized as planned as we should operate as an ongoing business. 2008 MeriUPromotion compensation will be developed per the original schedule with announcement in March 2008, retroactive to January 1, 2008.
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For any employee that .does receive an external employment offer, please do not hesitate to let me and your manager know. I am available to discuss your future TN career options with you. I would strongly request that people do not leave in the unprofessional manner that some employees used when t h e y left to join one o f o u r competitors.
The employee meeting will o c c u r in Houston the week o f January 28, 2008. Please plan your travel accordingly.
I've always believed that once a business model is finalized, that the number one competitor is only one's ability to execute/perform. While some might think o u r number one competitor is Oracle o r perhaps Rimini Street, I would tell you i t is still up to us as to how we d o in the marketplace. I recognize that Rimini Street and Oracle are contacting our customer base and we need to reassure o u r customers o f o u r continued support except in certain circumstances (see below). We have already reached out to many o f these customers with o u r plans for supporting them.
C o m m u n i c a t i o n / E x t e r n a l Press
As I stressed over the phone last week in the employee calls, it is very important that you do not discuss externally what i s going on within TomorrowNow. The external press so far has kept their articles and commentary primarily to that which was disclosed in the press release. By keeping quiet, we avoid rumors and speculation, both o f which can seriously damage our relationships with o u r customers and the future o f the business. There have only been a handful o f such "speculative" articles and that is a good result so I thank everyone f o r not discussing our business externally, even with friends o r neighbors, o r outside o f the offices in a public setting. With regards to our customers, you should communicate what is in the press release and that we will continue to support them through year end 2007 and then transition them to remote support.
I hope to have the retention plans finished by early next week with notification occurring later in the week. Note that there will be no "downsizing" in 2007 and any downsizing that might o c c u r in 2008 would still receive the 2007 bonus. At this point in time, my bias is to try to keep the majority o f employees in order to ensure that we will meet our customer obligations, although not all will be offered a retention plan.
New C u s t o m e r s / R e n e w a l s
Customers that d o not want to go to remote support (Project Level Set) will not be renewed when their contract expires. For other customers who can agree to the terms that we must have, it is possible that we will either take on new customers or renew them. I know that I said last week that we would not be doing this, but I should have given the caveats under which we would do so. I will working with the leadership team to determine whether any new solutions can be rolled out. So, for those o f you who might think we are definitely going out o f business, that is not the case. We have too many customers to just shut down and i f a sale does become possible, I need to balance the creation o f a more valued asset against increasing the liability to TomorrowNow and SAP. We are in the process o f rolling out the template under which we can take on new customers o r renew existing ones.
T r a n s f e r s t o SAP
Transfers o f TN employees to employment opportunities with SAP are possible under the right timing and circumstances with the obvious criteria o f there being a j o b opening within SAP. J u s t because there is a business operations "firewall" between SAP and TomorrowNow does not mean that TomorrowNow employees cannot find a home within SAP at some point in the future. With regard to employees opting out o f an acquisition because they do not like the purchaser, TomorrowNow will utilize the SAP Separation Plan and provide severance benefits if the buyer does n o t offer a "comparable position" which is defined as a position in the new company being within 50 miles or the new position offers at least 90% o f your current base salary. The amount offered under the retention plan would still be paid out following the completion o f any sale, but not additional severance benefits. As indicated in my opening comments, i f a buyer can be found, the SAP very much wants to find a buyer that is a good solution for our customers and our employees.
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I hope this answers y o u r current questions o r concerns. I will be trying to g e t o u t to most locations yet this year. The leadership team's next meeting will b e the w e e k o f January 1 0 , 2 0 0 8 . If you have other questions, do not hesitate to contact me. As you should b e able to see from the above, no final decisions on alternatives have been made, we have a business to run and one that still offers the potential o f a meaningful career. I look forward to working with you in making . T o m o r r o w N o w a valued partner to our customers. Regards, Mark
Mark W h i t e Chairman 610-661-2111 p h o n e
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