Oracle Corporation et al v. SAP AG et al

Filing 814

Declaration of Tharan Gregory Lanier in Support of 813 Motion for Partial Summary Judgment (FILED PURSUANT TO D.I. 810) filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X)(Related document(s) 810 ) (Froyd, Jane) (Filed on 8/27/2010) Modified on 8/27/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 814 Att. 6

EXHIBIT F

Dockets.Justia.com

UYEN NGOC ANN KISHORE September 25, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 250
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION o0o ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, Plaintiffs, vs. SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1 50, inclusive, Defendants. ___________________________/ Rule 30(b)(6) Deposition of UYEN NGOC ANN KISHORE Volume II Pages 250 540 No. 07 CV 1658 (PJH)

___________________________ Friday, September 25, 2009

HIGHLY CONFIDENTIAL

ATTORNEYS' EYES ONLY

REPORTED BY:

JOHN WISSENBACH, RDR, CRR, CBC, CCP, CLR, CSR 6862 01 421907

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09:52:48

25

Q.

Is it correct that Oracle EMEA is a party

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to various commissionaire agreements with a group of companies just below, listed in the white box that's labeled "Commissionaires"? MR. POLITO: THE WITNESS: Compound; vague. So the -- the list of

entities below is Oracle Deutschland -- which I think that's the German entity you're referring to -- Oracle Netherlands, Oracle UK, Oracle France, Oracle Norway, Oracle Switzerland, Oracle Italy, and Oracle Sweden all have commissionaire agreements with OEMEA.

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17 18 19 20 21 22 23 24 25

Q.

I want to draw your attention to the

commissionaire agreements that are -- at least I've depicted here in the lower right-hand box, under the heading "Commissionaires." A. Q. Uh-huh. And what I'm going to do is ask you some Do you see that?

questions about the UK agreement. A. Q. Okay. Is it your understanding in general that

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Oracle EMEA's commissionaire agreements with each of these entities are basically the same? MR. POLITO: Outside the scope, documents

speak for themselves, compound, vague as to time. BY MR. McDONELL: Q. I mean, the rates might differ, or

whatever, but they're basically the same structure? MR. POLITO: THE WITNESS: similar. Same objections. I think they're quite

Only exception within this group is

potentially Italy. BY MR. McDONELL: Q. And in what way -- okay. So let me get

that clear.

So you believe that the commissionaire

agreements between OEMEA on the one hand and Oracle Deutschland, Oracle Netherlands, Oracle UK, Oracle France, Oracle Norway, Oracle Switzerland, and Oracle Sweden are very similar? MR. POLITO: THE WITNESS: BY MR. McDONELL: Q. A. Q. Yes. Yeah. Okay. Outside the scope, compound. Currently, right?

But you believe that the -- they may be

different in some way from the agreement between

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Oracle Italy and Oracle EMEA; is that right? MR. POLITO: BY MR. McDONELL: Q. A. Q. A. And my question is what -Yeah. -- difference do you have in mind? I don't know. I don't recall without Compound; outside the scope.

looking at the agreements. Q. What may -- what triggers the thought in

your mind that there's some difference there? A. I just recalled noticing a difference in

the agreement when we went to try to amend the -the commissionaire agreement between Oracle Italy and OEMEA. MR. McDONELL: order, please. (Deposition Exhibit 661 was marked for identification.) MR. McDONELL: Q. No man's land. Will you mark that next in

I'm showing you what's been marked as And it's another slide that we've

Exhibit 661. prepared.

Take one moment to look it over, if you

would, please. A. Q. Okay. What this is intended to depict is a flow

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of royalty payments starting with the agreement between Oracle Corporation UK Limited and Oracle EMEA. Do you see how that's depicted in the lower

portion of the slide? A. Q. A. Q. Uh-huh. Is that a yes? Yes. Is it -- is it correct, in your

understanding, that payments for Oracle Corporation UK Limited's sublicenses of programs to end users get made first from Oracle Corporation UK Limited to OEMEA? Is that right? MR. POLITO: Outside the scope, compound,

assumes facts, document lacks foundation. THE WITNESS: So you have on here a green

arrow that says equals "Royalty Payments." BY MR. McDONELL: Q. A. Q. A. Yeah. Maybe, actually, a commissionaire --

Is not the right -Okay. What's the terminology?

I mean, under a commissionaire

arrangement -Q. A. Q. It's a fee? Exactly. Okay. And --

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A.

-- actually, with regards to the UK it's It's an

not a commissionaire arrangement. undisclosed agency -Q. A. Right.

-- undisclosed agent agreement.

And so the

revenue -- Oracle EMEA receives the revenue associated with the sale of license and support in the UK. Q. So there's no royalty payment going up. But it's -- is it remitted by Oracle

Corporation UK Limited to Oracle EMEA? A. Q. Yes. So Oracle -- Oracle Corporation UK Limited

will sublicense software and sales support services to end-user customers. A. Q. Yeah. Then for its services, Oracle Corporation Is that right? That's step one, right?

UK Limited gets paid a commission. A. Q. Yes. Okay.

And then the net amount is remitted

to Oracle EMEA, net of the commission, meaning the main license fee and support fee? MR. POLITO: THE WITNESS: BY MR. McDONELL: Q. Okay. Assumes facts. I don't believe so.

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A. OEMEA. Q. A. Q.

I mean, like I said, the revenue belongs to

From day one? From day one. Oh, okay. So Oracle Corporation UK Limited

is just the sales agent? A. It's the undisclosed agent in the

agreement, yes. Q. So the -- the selling party is actually

Oracle EMEA? MR. POLITO: lacks foundation. THE WITNESS: So Oracle Corporation UK is Calls for a legal conclusion,

the undisclosed agent, and it sells, you know, on behalf and for the account for OEMEA. BY MR. McDONELL: Q. So you're doing a better job than I am. So

let me start over and just ask you, if you will, if you're able to, explain to me what the flow of payments is among the Oracle family of corporations starting with a sale made by Oracle Corporation UK Limited as the undisclosed agent -A. Q. Uh-huh. -- of a software license and support

agreement to an end-user customer.

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MR. POLITO:

It's overbroad, is compound,

it's vague as to time, it lacks foundation in some cases, it exceeds the scope of the license in some cases. THE WITNESS: MR. POLITO: THE WITNESS: OEMEA. Right. You can answer if you can. So the revenue belongs to

But if -- I guess what you're asking for is Is that

how does that gets reflected on our books? what you're asking for? BY MR. McDONELL: Q.

What I'm really asking for is how does it It's -- my

flow through these Oracle entities. understanding is -A.

So -- so that maybe that's where I'm a Because when you're talking

little bit confused.

about flow, are you talking about the legal arrangement or -- or how it's actually reflected in our books? Q. Let's start with the -- the legal

arrangement. A. Q. Okay. Okay? So how does the -- how does the

revenue, which is software license and support revenue, flow through these entities?

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And let me tell you what I understand, and then you tell me if I'm right or wrong. My

understanding is that Oracle Corporation UK Limited serves as OEMEA's agent for purposes of making a sale. Is that right? MR. POLITO: THE WITNESS: yes. BY MR. McDONELL: Q. Undisclosed agent. And so the end-user Vague. It's an undisclosed agent,

customer commits to buy software and support, right? MR. POLITO: THE WITNESS: Overbroad. Yeah. So the end-user

customer enters into a contract. BY MR. McDONELL: Q. A. Q. dollars. A. Q. Okay. Are you with me? So Oracle UK Corporation -- or I'm sorry. Oracle Corporation UK Limited gets paid a commission for that sale. A. Yes. Is that right? Yes. Okay. And let's say they agree to pay a million

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Q. A.

But the revenue belongs to Oracle EMEA? Yes.

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---o0o--I declare under penalty of perjury that the foregoing is true and correct. Subscribed at day of

, California, this , 2009.

Signature of the witness

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