Software Rights Archive, LLC v. Google Inc. et al

Filing 118

SUR-REPLY to Reply to Response to Motion re 66 MOTION to Dismiss for Lack of Standing filed by Software Rights Archive, LLC. (Attachments: # 1 Exhibit Table of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Errata Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18, # 20 Exhibit Exhibit 19, # 21 Exhibit Exhibit 20, # 22 Exhibit Exhibit 21, # 23 Exhibit Exhibit 22, # 24 Exhibit Exhibit 23, # 25 Exhibit Exhibit 24, # 26 Exhibit Exhibit 25, # 27 Exhibit Exhibit 26, # 28 Errata Exhibit 27)(Duvvuri, Narasa)

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2 STEPHEN T. O'NEILL (115132)

CRAG M. PRI (077820) JANCE M. MOY (099996)

3 A Professional Corporation
3030 Hanen Way, Suite 200
4 Palo Alto, CA 94304-1009

MUY & MUY
[phone]

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Attorneys for Debtor

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UNTED STATES BANUPTCY COURT
NORTHRN DISTRICT OF CALIFORN
SAN JOSE DIVISION
Case No. 99-50736-JRG-l i
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12 Site Technologies, Inc.,

Chapter 11

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dba Deltaoint, Inc.

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Debtor.

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EIN No.: 77-0212760

Date: March 9, 1999 Time: 2:00p.m. 3020 Place: Room Judge: Hon. James R. Grbe

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NOTICE OF MOTION AND MOTION TO ASSUME AN ASSIGN EXECUTORY CONTRACTS (11 U.S.C. §§ 365(a). (0)
Affected Partes to Contracts:
Anawave Softre, Inc.

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20 Adaptec, Inc.
21 BlueSky SoftareC. orp. Claris Corporation 22 CNET Direct, InCo Cybersource Corporation Data-Arts
23 Eclipse Marketing, InCo

Microsft COrpration MoUy Penguin Softare

Neteom, Inc. NetNation Communication
Netpe Communications Co~ration
(Softare.net)

Omnicrom Softre Publishing Corporation
OpenCabe Technologies
Preview SOftare, InCo

FairComCorporation
24 Frame Technology Corporation

Global Entrpreneurs Net
25 Global Technologies Corp.

Programmer's Paradise, Ioc. SCO Site/technologiesinc.
Symantic Corporation

BomeCom

System Connect

26 Installshieldl Softre Corporation Internationa Business Machines Corp.
27 Lotus DevelolJment Corp.

TestDrive Corporation
Tidal Wave Communications, InCo

Internet Direct

Total Acces Communications Unisys Corporation
VisionTeq, Inc. WUliam G. Pryor
NOTCE

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28 MacMillanAssociates, Inc. McAffee Digital Publishing USA McLeod USA Telecommunications Services

Of MOTON AN MOTON TO ASSUMAN

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ASSIGN EXy CONT (II U.S.C. If 365(8). (I))

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ORIGINAL
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TH HONORALE JAMS R. GRUBE, UNTED STATES BANUPTCY

ruGE

COMES NOW Site Technologies, Inc., the Debtor and Debtor-In-Possession (the
"Debtor") who hereby moves for an Order approving the assumption and assignent of certn

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executory contracts to StaBase Corporation ("StaBase") in connection with the sale of the
Debtor's core technology and related assets to StaBase for a purchase pnce consisting of

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625,000 shars of StarBase common stock. The purchae price is subject to adjustment at the

cl.osing of the sale to cause the aggregate estated value of the StaBase common stock to be
not less th $500,000 and not greater than $1,500,000.

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I.' NOTICE
PLEASE TAK NOTICE that a hearg will be held on March 9, 1999 at 2:00 p.m.

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before the Honorable James R. Grbe, United States Banptcy Judge, in Couroom 3020,
United States Courouse and F~deral Building, 280 South First Street, San Jose, Californa, to

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consider the MOTION TO ASSUM AN ASSIGN EXECUTORY CONTRCTS (11 U.S.C.
§§ 365(a), (f)) (the "Motion") fied by the Debtor.
Any opposition to the Motion must be fied with the United States Banptcy Cour

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United States Courouse and Federal Buildig, 280 South First Street, Room 3035, San Jose,

CA 95113 and sered on the Debtor's counsel, Janice M. Muray, Esq., Mury & Muray, A
Professiona Corporation, 3030 Hansen Way, Suite 200, Palo A.lto, CA 94304-1009, telephone

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[phone], facsimile [phone] no later th Februar 23, 1999.

The Debtor is serving a separate notice of this Motion on all creditor and paries in

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interest concurently herwith. Furer, the Debtor is serving ths Motion on eah par identified
as a non-debtor par to an executory contrct which the Debtor seeks to assume and~assign.

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THE DEBTOR WRL REQUEST TH COURT TO DETERME THAT A
NON-DEBTOR PARTY TO AN EXECUORY CONTRCT WHCH IS TO BE
ASSUMD AND ASSIGNED is DEEMED TO HAVE CONSENTED TO SUCH

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ASSUMPION AN ASSIGNMENT AND TO HAVE AGREED THAT TH CUR -

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AMOUNT STATED IN EXHIT "A" CURES ALL OUTSTANING MONETARY
NOTCBOF MOTION AN MOTON TO ASSU AN

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ASSIGN BXY COCT (1 1 U.S.C. II 365(a). (t))

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1 DEFAULTS UNESS IT FILES AN SERVES AN OBJECTON TO TH MOTION
2 NO LATER THA FEBRUARY 23,1999.

3 n. SUMMAY OF RELIEF SOUGHT
4 1. The Debtor request an Order approving the assumption and assignent of varous

5 executory contracts to StaBase in connection with the Debtor's motion to sell its core
6 technology and related assets to StaBase. The backgund and detals of

the proposed sale to

7 StarBase ar more fully described in the notice which is being served concurently herewith and
8 will not be restated here.

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m. MOTION to ASSUME AN ASSIGN EXECUTORY CONTCTS (11 U.S.C. §§ 36S(a). (0)
2. The Debtor moves to assume'the executory contrcts listed on Exhbit "A"

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12 atthed hereto and incorporated herein by reference puruant to § 365(a) of

the Banptcy
the Banptcy Code.

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13 Code and to assign all such contracts to StarBase puruant to § 365(t) of

14 All existing defaults are shown as the Cure Amount on Exhibit "A" and will be paid by the

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15 Debtor as soon as practicable following closing of the sale and the Debtor's liquidation of the the the cure. If
16 StaBase common stock, unless the contracting par disputes the amount of

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17 contracting par disputes the amount of the cure, the Debtor will reserve the full amount claied
18 by such par and wil fie and serve on such par a motion to detennine the amount of the cure
19 within ten (1Q) days of the closing of

the sale.

20 3. StarBase has substatial expertise in ths area and intends to incorporate the

.21 Debtor's core technology and related assets with its existing business. Accordly, the Debtor
22 believes that upon the closing of the sale to StaBase, Sta

Base will have the requisite skill,

23 expertise and financial resources to fully perform all obligations under the execuory contrcts
24 and that such skil, expertise and fincial resources provide adequate assurance of futue

25 peformance of the Debtor's obligations.
26 4. The listing of a contract or agreement on Exibit "A" atthed hereto shall not be

27 deemed an adission by the Debtor that such contract or agreement is an executory contract.

28 Accordingly, the Debtor reserves the right to make a determnation as to the proper

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NOTcøoP MOTON AN MOTON

TO ASSUM AN

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ASIGN EXRY CONfCT (11 U.S.C. 1136'(.), (f))

1 charcterization of the agreements listed therein. The Debtor desires to ase those executory
2 contrts set fort on Exhibit "A" to the extent, and only to the extnt, that any such contract
3 constitutes an executory contract and to assign its rights and obligations under each such

4 executory contract to StaBase. The Debtor reserves the right to withdraw any of the

5 executory contracts or agreements from said list at any time up to the time of the conclusion
6 of the hearing on this Motion.
7 5. The Debtor believes that except for and to the extent of

the amount listed on

8 Exhibit "A" as the "Cure Amount", the Debtor is not in default under any of

the contrct listed

9 on Exhibit" A". The Cure Amount will be paid to the respective paries to the exeputory
10 contracts to cure all defaults, if any, under such executory contrts. The cure amount will be
11 paid by the Debtor as soon as practicable following closing of

the sale and the Debtor's

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12 liquidation of

the StarBase common stock.

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IV. OBJECTIONS
6.

Any par to an executory contract to be assumed which (i) objects to the

:ed ~::: i; .- -= ~ d § j 16 different from the amount stated in Exhibit "A" must file with the Cour and serve on the j~'i~ s~'a
ë 0 ~ i~ 17 Debtor's counsel an objection to

15 assumption and assignent of such contract to StaBase, or (ii) assert arearages in an aiount
such assumption no later than February 23, 1999. The

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1 8 Debtor wil request the Court to determine that failure to timely me such an objection shall

~ 19 èonstitute consent to the assumption and assignment of the executory contract, an
20 agreement to the cure on the terms provided for herein and an acknowledgment that (a) the
21 proposed assumption provides adequate assurance of

future peñormance, and (b) no other

22 defaults exist under sueh executory contract except for the Cure Amounts listed on Exhibit

23 "A".
24 7. Section 365 of

the Banptcy Code allows the Debtor to assume an executory

25 contract if there has been a default in the executory contrct, if the Debtor cures or provides

26 adequate assurance tht the default wil be cured, compensates the other paries for any actul
27 pecuniar loss resulting from such default and provides adequate assurance of

futue

28 performance. As set fort above, the existing defaults under the contracts listd on Exhbit "A"
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NOTICE OF MOTON AN MOTON TO ASSUM

AN

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ASSIGN BXRY CONTCf (11 U,S.C. 11365(1), (f))

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1 wil be cured as ,soon as practicable followig the closing of

the StaBase transaction and the

2 assignent of such contracts to StaBase provides adequate assurce of futu performance of
3 the Debtots obligations thereunder.

4 8. Inasmuch as the abilty to cure existi defaults and provide adequate assurce of

5 futue performance is contingent upon the closing of the sale to StaBase, the Debtor requests
6 tht the assumption and'assignent of the contracts listed onExhbit "A" be effective as of

the

7 closing under the StarBase sale agreement.

8 WHEREFORE, the Debtor prays that this Cour enter its Order authorizi the Debtor
9 to assume the executory contrts listed on Exhbit "A" hereto and to assign the same to StaBase

10 effective as of the closing under the StaBase sale agreement.
11

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Dated: Februar 9, 1999

MUY & MUY

A Professiona Corporation

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Bf~r'Debdo.r~;J t ~o
J CE M. MOY

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NO'CE OF MOTION AN MOTON

TO ASS AN

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ASSIGN EXUTRY CONTcr (II U.S.C. It 36S(I), (I))

EXHIBIT "A"
MOTlON TO ASSUME AN ASSIGN EXECUTORY CONTRCTS
EXECUTORY CONTRACTS TO BE ASSUMED AN

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ASSIGNED

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TO STARASE CORPORATION
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Schedule 2.01 (c)

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."Cure
Secton 2.01(c) shall be limited to the following asset and propertes:
Sales Team Act Database & Act Softar License

Amount

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$0.00
$0.00

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Point of Sales Filemaker Databass & Filemaker Softar License

POS 1st Quaer 1998 POS 1st Quarer 1997
POS 2nd Quarer 1998
POS 2nd Quaer 1997

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POS 3,d Quaer 1997 POS 4th Quarer 1997 Product Codes
'Product Codes 1st Quarer 1998
Product Registrtion Purchase Order Log 8

Purchase Order Log 7

Puchae Order Log 6

RMLog 1998
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TS Call log

Customer List

License Agreements
Active Outbound Agreements:

Seller entered into an Electronic and Packaged Goods Distbution Agrement $0.00
with Anwave Software, Inc., on December 5, 1997 and an Amendment #1 to ths
Agreement on May 15, 1998. The agreement allows for Anwave Softar, Inc.

to distrbute Seller's products QuickSite 2.5, QuickSite 3.0 ESD, WebAnmator
1.1 ESD, a Promo Bundle and SiteSweeper 2.0 Boxed Product. Ths agreement
automatically renews unless terminated with thrty (30) days wrtten notice by

either par.
Seller entered into a Softe Commerce Agreement with CNET Direct, Inc., $0.00

,dated June 23, 1997, by which CNET Direct, Inc. wil act as an agent to accpt payment for such softwar from customers puruat to CNT's developer advocate program. This agreement reInns in effect until terminated by either

part with thirt (30) days notice by either par.
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EXHIBIT-A

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Schedule 2.01 (cl continued
Seller entered into an Electronic Softar Reseller Agreement with Cybersoue

Cure ':': :" Amoun( :::~:

$0.00',. .
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Comoration (Softare.net), datee; Augut 6, 1996, by whichCybersource
Corporation will electronically package and distrbute Seller's softare products to
end-user customer. This agreement automatically renews anualy but

may be

termted upon ninety (90) days wrtten notice by either par.
Seller entered into an Agreement with MacMilan

Digita Publishing .on June 4,

$0.00

1997 which allowed MacMilan Digita Publishig to ship Seller's softe,
Deltaoint QuickSite Express 2.5, in the MacMillan Digital Publishing product

Professional Web Design Kit 2.0 (ISBN #1-562-05737-5). Ths agreement is for
an eighteen (18) month period and automatically termnates on December 4, 1998.
.:.

Seller enteed into an Agrement with MacMilan Digita Publishing USA on
Febru 17, 1998 and an addendum to ths agreement on March 31, 1998 which

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allowed MacMilan Digita Publishing to ship the Seller's softare QuickSite 2.5x and QuickSite 3.0x in the MacMillan Digita Publishing products Web Page
ConstrctiónKit 4.0 (ISBN # 1-57595-075-8) and Web Page Constrction Kit
Deluxe (ISBN # 1-57595-097-9). The term of

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the agreement is two year from date of signing and will automaticaly tennate on Febru 17,2000.
Seller entered into a Dealer Agreement with Programer's Paradise. Inc. on

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$0.00 :~

November 7, 1996 which allowed Programer's Pardise to resell Seller's
SiteS

weeper 1.0 product. Ths ageement automatically renews anually and may
$0.00

be teninated with ninety (90) days wrtten notice by either pary.

Seller entered into an Electronic Distrbution Services Agreement with
TestDrive Corporation on Februar 20, 1998. This agreement allows TestDrive

Corporation.to electronically distrbute Seller's SiteSweeper 2.0, QuickSite 3.0 and WebAnmator 1.1 products on their Internet store sites. This agreement will
automatically terminate on Februar 20, 1999.

Seller entered into a Software License Agreement with Wiliam G. Pryor on
September 16, 1997, which grants Mr. Pryor a perpetual

$0.00

license to manufactu,

copy, modify create derivative work of, sublicense, transfer and distrbute the Seller's QuickSite version 2.x. Ths agreement executable binar object code of

may only be terminated by certin conditions that are addressed in Section 10 of
the Software License Agreement.

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Schedule 2.01 ecl continued

curf,;;",',;:':' AmoUn't ":, :", ': "

Inctve Outbound Agreements (Tese agreements have been entered into by Seller but
have had no curnt activity on them. Neither par has sent any tenation notice):

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$0 ;~ijk~',:, ' ';:,

Seller enteed into a binding Letter of

Intent with Data-Ar on July 15, 1996 by

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which Data-Ars would provide Seller's QuickSite cusmers a free 30 day tr

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hosting service and thereafter pay the Seller a 20% fmders fee for ongoing monthy service revenue for any QuickSite customers. Either par can termate ths agreement with thirt (30) days advance notice.

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Seller entered into a binding Letter ofIntent with Eclipse Marketig Inc. on July 15, 1996 by which Eclipse Marketing Inc. would provide Seller's QuickSite customers a free 60 day tral hostng servce and thereafr pay Seller a 20% finders fee for ongoing monthy service revenue for any QuickSite customers.
Either par can terminate Uus agreement with thrt (30) days advance notice.

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entered into a binding Letter ofIntent with Global Entrpreneurs Net on July 15, 1996 by which Global Entrepreneurs Net would provide Seller's
Seller

$0.00
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QuickSite customers a free 30 day tral hosting service and thereafer pay Seller a

30% finders fee for ongoing montly service revenue for any QuickSite customers. Either pary can terminate this agreement with thrt (30) days advance notice.
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Seller entered into a binding Letter oflntent with HomeCom on November 5, 1996 that allows HomeCom to receive the QuickSite product at a discounted rate.
Either par

$0.00

can terminate this agreement with th (30) days advance notice.

Seller entered into a Softare License Agrement with International Business
. Macines Cor ("IBM") on September 6, 1996. This agrement allows IBM to

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market and distrbute a customized version of QuickSite. Ths agreement may be terminated by IBM with sixt (60) days' wrttn notice and by Seller with six (6) month wrtten notice.
Seller entered into a Term Sheet with Internet Direct on July 30, 1996 by which Seller provided a special 30 day trial edition of QuickSite for free distribution by
Internet Direct. In addition, Internet Direct ha the right to include and distibute a the QuickSite 2.5 software in its GoSite client softare. The agreement copy of
automatically renews anually unless either par provides thirt (30) days wrtten

$0.00

notice.

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Schedule 2.01 (cl continued

Amount "

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Seller entered into a Distrbution Agreement with McAFEE Associates, Inc. on
Septembe 5,1996 by whch McAFEE Associates, Inc. would electroiucally distrbute Seller's products. lbs agrement automatically renews 'uness
tenninated by thrt (30) days wrttn notice.

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Seller enterd into a binding Letter oflntent with NetNation Communcaton on

$0.00:.

November 26, 1996 by which NetNaton Communcation provides Seller's
QuickSite customers a fre 30 day tral hosting serce and thereafr pays Seller a

10% fiders fee for ongoing monthy serice revenue for any QuickSite custmers.
Either par ca tenninate ths agreement with th (30) days advance notice.
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Seller entered into an Agrëement with Netm Interactive on July'16, 1996 by
which Seller and Netcom Interactive agreed to cooperate in the maretig, sales,

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licensing and distbution of their resptive products. 1bs ageement
automatically renews and may ternate upon six (60) days advance notice.

Seller entered into a binding Lettr of 1996 that allows System Connect to receive

Intent with Systm Connect on November 4, the QuickSite product at a discounted

$0.00
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rate. Either par can tenninte ths agrement with th (30) days advance

notice.
Seller entered into a binding Letter of

Intent with Tidal Wave Communcations,

$O.OO:~

Inc. on October 5, 1996 by which Tidal Wave Communications, Inc. provides
~r's QuickSite customers a free 30 day tral hosting service and thereaer pays

Seller a 30% finders fee for ongoing monthy servce revenue for any QuickSite
customers. Either par ca tenninate ths agreement with thrt (30) days

advance notice.

Intent with Tota Access Communcations on October 10, 1996 by which Tota Access Communcations provides Seller's
Seller entered into a binding Lettr of

$0.00"

QuickSite customers a free 30 day tral hostig servce and thereafr pays Seller a

30% finders fee for ong9ing monthy serce revenue for any QuickSite customers.
Either par can tenninate this agrment with thirt (30) days advance notice.

Seller entered into a binding Letter oflntent with VisionTeq, Inc. on July 15, 1996 by which VisionTeq, Inc. provides Seller's QuickSite customers a free 30 day tral
hosting serice and thereaer pays ,Seller a 30% finders fee for ongoing monthly
service revenue for any QuickSite customers. Either par can teminate this
agreement with thirt (30) days advance notice.

$0.00

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