Google Inc. et al v. Egger et al

Filing 65

Declaration of FRANCIS C. HO in Support of 64 MOTION to Strike 42 MOTION to Dismiss , Transfer or Stay filed byYahoo! 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)(Related document(s) 64 ) (Hung, Richard) (Filed on 1/20/2009)

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Case 2:07-cv-00511-CE Document 76-2 Filed 08/25/2008 Page 22 of 44 IN TH UNED STATES DISTRICT COURT FOR TH EASTERN DISTRCT OF TEXAS MASHAL DIVSION SOFTWAR RIGHT ARCIDVE, LLC v. Plaintiff, Civil Action No. 2:07-cv-511-TJW GOOGLE INC., YAHOO! INC., lAC SEARCH & MEDIA INC., AOL LLC, and LYCOS, INC. Defendants. JUy TR DEMAED DECLARTION OF JEFFRY FR AIT I, Jeffey Fralin Ait, under penalty of perjur, hereby make the following declaration. All facts set forth herein are tre and correct, and I make this declartion baed upon my personal knowledge and upon review of corporate records: 1. I becae the Chief Executive Offcer of DeltaPoint, Inc.lSite Technologies, Inc. ("Site Tech") on March 24, 1997. I also served as Chief Financial Offcer and Director of Site Tech since September 2, 1997. I was also the President and Chief Executive Offcer and Secreta of the corpate shell of the Delaware corpration, Site!lechnologies/Inc. ("SitefTech"), from the time that Site Tech acuired its stock and assets until its remaining corporate shell was merged with Site Tech in 2000. I was also at times the sole director of Siterrech as well as the offcial "responsible person" in the banptcy of Site Tech. 2. On July 11, 1997, Site Tech acquired Sitelech from Daniel Egger and other stockholders. At that time, Site Tech's name was Deltapoint, Inc. The purose of this trsaction was to merge the business of Siterrech into Deltapoint, Inc. In this trsaction, EXHIBIT 7 Case 2:07-cv-00511-CE Document 76-2 Filed 08/25/2008 Page 23 of 44 Deltapoint directly acquired all outstanding stock of Siterrech and all of the then-existing assets of the company, including its patents and trdemarks. Deltaoint adopted the name of "Site Technologies, Inc." from Siterrech and began conducting business under Siterrech'g trademarks, which were directly acquired in the transaction as assets of Site Tech, and continued developing the proucts which were the former busines of Siteffech. All former operations of Siterrech became operations of Site Tech and the fonner employees of Siterrech became the employees of Site Tech to the extent that these employees remained in the organization. Site Tech adopted and employed Siterreeh's website, email addresses, and other propert as its own, and represented that it owned them. Afer the July 11, 1997 acquisition, Siterreeh lacked any substatial independent operation or business from that of Site Tech. It did not design, produce, market, or sell anything, and it had no significant independent costs or revenues. Further, Site Tech conducted Siteffech's few remaining busines affairs on Site!fech's behalf. Site Tech prepared consolidated financial statements for the companies, and Site Tech maintained Siterrech's ta records. 3. Sitellech did not observe corporate formalities. Sitellech held no director meetings or shareholder meetings. Siterrech made no decisions, and took no actions, separate from Site Tech. Siterrech maintained no ban account separate from Site Tech's bank account. Siterrech did not segregate any assets from Site Tech's assets; instead, Site Tech represented that it acquird all ofSitelTech's assets on July 1 i, 1997, including its patents. Siterrech did not segregate its corporate records from those of Site Tech. In fact, Sitetech maintained no separate corporate records. 4. My understanding of the corporate records is that on July 8, 1997, the change of control provision of the Certificate of Incorpration of Siterrech was amended in connection 2 Case 2:07-cv-00511-CE Document 76-2 Filed 08/25/2008 Page 24 of 44 with the acquisition to invoke the liquidation provisions of the Certificate of Incorpration upon execution of an agreement that sold substatially all the stock ofthe company. Attahed is a tre the amendment to the Certificate ofInoorpration. The assets, including the and correct copy of patents, were transferred to Site Tech and assets were in fact held by Site Tech after the acquisition. 5. On September 16, 1998, Site Tech sold and assigned, among other things, U.S. Patent No. 5,544,352, and related applications and futu patents (which include U.S. Patent Nos. 5,832,494 and 6,233,571) to Daniel Egger (the "Patents"). Daniel Egger paid $100,000 for the Patents. 6. I was the chief corporate offcer of both Site Tech entities that controlled and later sold all of the assets on behalf of both Site Tech entities in several transctions with different parties that were originally acquired frm Daniel Egger and his investors. At the time of the execution of the 1998 Bil of Sale and Assignment that assigned the Patents to Daniel Egger, I was the CEO of both Site Tech and Site/Tech and was fully authorid by both companies to assign the Patents to Daniel Egger, It was my intent, as well as the intent of all the Site Tech entities, to transfer the Patents to Daniel Egger through the 1998 Bil of Sale and Assignment. After the sale, neither Site Tech entit caried the Patents on their books and both recognized the validity of the 1998 Bil of Sale and Assignent and that the Patents had been transferred to Daniel Egger thrugh these contracts. I also delivered the other V -Search products and code due under the 1998 Bil of Sale to Daniel Egger on behalf ofthe Site Tech entities. To the extent that there is any question as to whether the Patents were assigned to Daniel Egger, the Site Tech entities do not claim any title to the Patents and have long disclaimed any ownership in favor of Daniel Egger. This includes Siterrech, which ratified the 1998 Bil of Sale and Assignment and 3 Case 2:07-cv-00511-CE Document 76-2 Filed 08/25/2008 Page 25 of 44 Site Techls authorit and right to trnsfer the patents in those documents on behalf of'all Site Tech entities a long time ago. 7. The Site Tech entities furter approve of and ratify the previous 1998 Assignments and the 2005 Assignment to Daniel Egger filed on behalf of Siterrech by Daniel Egger. 8. The 2005 assignent was within the intent of all the parties to the trnsaction and fairly represented the transaction. I declar under penalty of perjui under the laws of the United Stas of America that the foregoing is true and correct. ~ Executed on August.t 2008 Myrle Beachi South Carolina 4

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