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

Filing 76

RESPONSE to Motion re 66 MOTION to Dismiss for Lack of Standing filed by Software Rights Archive, LLC. (Attachments: # 1 Exhibit Declaration of Lee Kaplan 1-12, # 2 Exhibit Declaration of Lee Kaplan 13-16, # 3 Exhibit Declaration of Lee Kaplan 17-24, # 4 Exhibit Declaration of Lee Kaplan 25-36)(Kaplan, Lee) (Additional attachment(s) added on 2/3/2009: # 5 Text of Proposed Order) (ehs, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION SOFTWARE RIGHTS ARCHIVE, LLC, Plaintiff, "V. � � � � Civil Action No. 2:07-cv-511-TJW OGLE INC., YAHOO! INC., lAC SEARCH & MEDIA, INC., AOL LLC, and LYCOS, INC., GO � � � � JURY TRIAL DEMANDED � � � Defendants. DECLARATION OF LEE L. KAPLAN I, Lee L. Kaplan, under penalty of perjury, hereby make the following declaration: "1. My name is Lee L. Kaplan. I am over eighteen (18) years of age and am fully competent to make this Declaration. I have personal knowledge of the facts herein and they are true and correct. 2. I am an attorney representing Plaintiff Software Rights Archive, LLC in this matter. 3. Exhibit 1 to this declaration is a true and correct copy of the August 6, 1996 5,554,352 Patent. 4. Exhibit 2 to this declaration is a true and correct copy of the November 9, 1993 Assignment of the Method and Apparatus for Indexing, Searching and Displaying data from Egger to Libertech. 5. Exhibit 3 to this declaration are true and correct copies of patent 5,832,494, dated November 3, 1998 and patent number 6,233,571 dated May 15,2001. 6. Exhibit 4 to this declaration is a true and correct copy of the June 18, 1996 Assignment from Egger/Cannon/Sauers to Site/Tech. 7. Exhibit 5 to this declaration is a true and correct copy of the August 22, 1996 Name Change from "Libertech, Inc." to "Site/Technologies/Inc." 8. Exhibit 6 to this declaration is a true and correct copy of the July 3, 1997 Email from Mendel to Egger et aL. 9. Exhibit 7 to this declaration is a true and correct copy of the August 18, 2008 Declaration of Jeffrey Franklin Ait. 10. Exhibit 8 to this declaration is a true and correct copy of the Noncompetition Agreement entered into in connection with the July 1997 acquisition. the July 8, 1997 Special Telephonic Meeting of the Board of Directors of Site/Technologies/Inc. amending the Certificate of Incorporation. 11. Exhibit 9 to this declaration is a true and correct copy of 12. Exhibit 10 to this declaration is a true and correct copy of the July 11, 1997 Site/Tech Certificate of Amendment of the Certificate of Incorporation with a copy of the Restated Certificate of Incorporation of Libertech Inc. 13. Exhibit 11 to this declaration is a true and correct copy of the July 1997 Stock Exchange Agreement. 14. Exhibit 12 to this declaration is a true and correct copy of the July 11, 1997 Site Technologies Inc. 8-K/A. 15. Exhibit 13 to this declaration is a true and correct copy of the September 29, 1997 Site Technologies Inc. SB-2/ A. 16. Exhibit 14 to this declaration is a true and correct copy of the October 1, 1997 Site Technologies Inc. SB-2/A. 17. Exhibit 15 to this declaration is a true and correct copy of the October 2, 1997 Site Technologies Inc. SB-2/ A. 18. Exhibit 16 to this declaration is a true and correct copy of the October 8, 1997 Site Technologies Inc. 424Bl 19. Exhibit 17 to this declaration is a true and correct copy of the September 30, 1998 Site Technologies Inc. lOQSB. 20. Exhibit l8 to this declaration is a true and correct copy of the January 19, 1998 Site Technologies, Inc. 8-K. 21. Exhibit 19 to this declaration is a true and correct copy of the December 31, 1998 North Carolina Anual Report for Site/Technologies/Inc. 22. Exhibit 20 to this declaration is a true and correct copy of the Site/Technologies/Inc. 1998 tax retur. 23. Exhibit 21 to this declaration is a true and correct copy of the July Site/technologies/inc. Amended Certificate of Incorporation. 2 24. Exhibit 22 to this declaration is a true and correct copy of the July 11, 1997 Action by Unanimous Written Consent of the Board of Directors of Site/technologies/inc. board meeting amending Certificate of Incorporation. 25. Exhibit 23 to this declaration is a true and correct copy of the October 24, 1997 Minutes of the Regular Board Meeting of the Board of Directors of DeltaPoint, Inc. changing the Company's name from DeltaPoint, Inc. to Site Technologies, Inc. 26. Exhibit 24 to this declaration is a true and correct copy of the September 1998 Bil of Sale, Assignment and License Agreement. 27. Exhibit 25 to this declaration is a true and correct copy of the June 4, 2008 Sky Technologies Order. 28. Exhibit 26 to this declaration is a true and correct copy of of the Form 7. Statement FinancIal Affairs filed February 18,2000. 29. Exhibit 27 to this declaration is a true and correct copy of the April 25, 2000 Debtor's First Amended Plan of Reorganization. 30. Exhibit 28 to this declaration is a true and correct copy of the July 11, 1997 Written Consent of the Sole Stockholder of Site/technologies/inc. of the Removal and Appointment of directors. 31. Exhibit 29 to this declaration is a true and correct copy of the December 21, 2000 Action by Written Consent ofthe Sole Director and Stockholder of Site Technologies, Inc. of the Resolution merging Site Technologies, Inc. with site/technologies/inc. 32. Exhibit 30 to this declaration is a true and correct copy of the December 21,2000 Certificate of Ownership merging Site/Technologies/Inc. into Site Technologies, Inc. 33. Exhibit 31 to this declaration is a true and correct copy of the December 29,2000 Certificate of Ownership and Merger merging Site/Technologies/Inc. into Site Technologies, Inc. 34. Exhibit 32 to this declaration is a true and correct copy of the August 19, 2008 Declaration of J. Christopher Lynch. 35. Exhibit 33 to this declaration is a true and correct copy of the July 11, 1997 Site Disclosure Schedule. 36. Exhibit 34 to this declaration is a true and correct copy of the April 25, 2000 Debtor's First Amended Disclosure Statement. 37. Exhibit 35 to this declaration is a true and correct copy of the February 18, 1999 Declaration concerning Debtor's Schedules, along with Schedules F -H. 3 38. Exhibit 36 to this declaration is a true and correct copy of Notice of Motion and Motion to Sell Assets Out of the Ordinary Course of the February 11,1999 Business (11 U.S.C. � 363(b)) and Free and Clear of Liens, Claims, Encumbrances and Interests (1 1 U.S.C. � 363(f)). perjury under the laws of I declare under penalty of the United States of America that the foregoing is true and correct. Lee L. Kaplan Executed on August 25,2008 Houston, Texas k 4 EXHIBIT 1 IIIIIIIIIII~ 1111111111111 mi 111111111111~i II� imiiiiiiiiiiiiiii g~~ USOO5544352A United States Patent (19) Egger (54) METHOD AN APPARTUS FOR INEXG, (II) (45) Patent Numer: Date of Patent: 5,544,352 Aug. 6, 1996 SEACHG AN DISPLAYIG DATA Oelbar & Smith, "Beyond Boolea Seach: FLBXCON. A Legal Thxt-Based Intellgent System," lCA '91 (1991). Lin, "A Self-Qrganzing Semantic Map for Inormon ,(751 Inventor: Daniel Egger. Washigton, D.C. Retreval," SlOm '91 (1991). Thle & Croft "Inference Networks for Document (73) Assignee: Libertech, Inc., Durha, N.C. (21) AppL. No.: 76,658 Reiieval," SIOR '90 (1990). Priary E:iner-Thomas O. Black (22) CFed:_Juii. 14, 1993 Assistant Examiner-Wayne Amsbury AI/orney, Agent, or Finn-Dorney & Whtney PLLP (57) (51) Int. Ci.ii ..................................................... G06F 17130 (52) U.S. Ci. ............. 3951600; 364/419.19; 364/DIO. I; 364/2.1; 364/283.3 ABSTRACT (58) Field of Seah .............._...... 3951600; 3641419.19, 364419.13 (56) References Cite A computer researh tool for inxing, searching and dis- playing data is disclosed Specfically, a computer research tool for perormg computerized research of data including textual objects in a dataase and for providing a user interface tht sIgnificantly enhances data preseutation is U.S. PATE DOCUMENTS 4,839,853 611989 Deerwesier et ai. .................... 395/600 decrbed Textual objects an other data in a database are indexed by creatng a numerical representaion of th data 4,945,476 7/1990 Bodck et ai. ..................... 364/413.02 5.122,951 611992 Kamya ..........~.................. 364/419.13 5,157.783 1011992 Awlemm el al. ......:............... 395/60 The indexing technique called proximity indexing generaes a quick-reference of the relatons, patterD and simity found among the data in the dataase. Proximity indexing indexes the data by using statistical techiques and empir- 5,206.949 411993 Cochr el ai. ........................ 395/600 5.241,671 811993 Ree el al. .............................. 395/600 5,243,655 9/1993 Wang ...................................... 380151 5.301,109 411994 Ladauer et ali ....._.......... 364419.19 5,325,298 6/1994 Gallonl ............................... 36419.19 5,418,948 511995 Tue ........_............._........... 395/600 caly develope algorithms. Using tls proximity index, an effcient seah for pools of data having a parcular relaton, pattern or characterstic ca be effectuate. The Computer Seach prgram caled the Computer Search Progr for DlUa represented in Matrce (CSPDM), provides effcient computer searh methods. The CSPDM ran orders data in accrdace with Uie diu's relationship to time, a paradigm daum, or any similar reference. The user interfac progr. OTHE PUBLICATIONS Agosli, et al., "A 1\o-evel Hypertext ReiievaI Model for Legal Data" srom '91 (1991). Fowler, et al., "Integrtig Query, Thesaurs and Documents caled the Grphical User Interface (OUI), provides a user Though a Coin Visual Representaton," SIGm '91 (1991). friendly method of interactig with the CSPDM progr and prepar and presents a visual grphical display. The graphical display provides Uie user wiUi a two dimensional spatial orientation of the data. Rose & Belew, ''Lgal Inormation Retreval: a Hybrid Approach," ICAI '89 (1989). Belew, Richar, "A Connectionist Apprach to Conceptual Inormation Retreval," iCAl '87 (1987). 52 Cla�, 24 Drawing Sheets 7. EXHIBIT 1 EXHIBIT 2 . -.'".. ~~. ~: ..~: ... :~. ~1 ASSIGNMNT . WH, J, Danel Egger, 2DWest Oub ~var~ :Qu, Nort CaoUn 2705, have Invented �r rtW !l!l ~,~prov~Is'~ a :i :~~~. '.�,l ,Of MBniOD AND APARTU FORINBXG;.~G,ANiDls~YlG Patet of' ~'lJnit8.Sia~"~'i~ DATA, for which an appHcain fo 'Lett. which may be ldentiecUn th UJUted Sta Patet, and. Ti�ik ef�'b�'5e J~~ :~ No. 08/076,6 fted June 14, 199; and extlguner th laws of the DItrct of Col'�\i.. ai,~'V;a,b~.,a4~' at 2027 West WH� 1J~.In (~"')" a.rOratJ�� '0iaN ar Club Boulvard, Duhai North eall, ~05~ ls�d~ai\p�(~ :..11 (~ ~"~ '1~:: th entie right, tlt1,and l�est.lnim"10 aa4"lnv~tlJl."sad 'appU~tlo�uu�. In, 10 and. under any an al J. Patent to'be obt thr; NOW, THlU, fo il' In COeratlniofOn,�QUui ($1.0) an other goo an valuable colderlJn�I ,10 'me.In.i�:pal;by,th'ni-,~i: tle rapt of which 18 heby ada�wl~g~/'1 have ~1dl iusn�d.;l�d~�'~lre� an 0' ,j 0), ri!a by th~ preBts~ lieby se�l�lgn ancUrlU~ ~to,sad r.beeCj,lia. Q:,',,r:;~,al.; _,: n .. 'rn' ';';~;lJ. sucrs and as�lgn, .my. ~.tle...ilgl~, tltle'a,: aiteestin and~'~:;ild:,�\ventlon, " sald;rappUcatlon,iu .th Lettei;P�~tibOth forel�q!NU~r;oiies~.~, ~t:~y'cir~~ lsaue� lnd~g al of my'entle!itBllj,,~de,,~'~~�lna';��nv~il ~d;I 'do llereby auaiorf,aadireqii8t.;tI�'COi�~�af~lj�t�ti';~,1slUe sad;I;tters P�tet to the abDve mei�On~~tasslgnee,liuccrda'.hewtlt c;;;;m~ : . i~"'Jrr1 . � ,;i�~ ~'6,~' ; " ''' a.' ,��l ~:;:i~ 'r;jifJ li" -p p'.YP.i p'p'lY: ,.,' .......,1'., i" . .' "'" Y y ro l I:=by.~~;.,,:;; :_~~::~r:~_~~t~t .~"il �f�relp Q)~t#N;:~r�'� '~:Y,it�(~l~ri.~�JU1iS1~te~l.aiai;t1nit�d 'st�te ap:pH��t1c;n;iUd/or'oth�re:t�'adv~~g,. ofth:provllons of:the Inteati�nal C"onvent1�n.' ~~f~f. ;',:e"! 111"" \:!Jl . ~~:t':l~ ,~:~i~ Upon::S�lr1 ~ld.erl,tl~l"l, do;'~by" CQv.eat.in~lgr.with th'sad: ....: w,h" '......" aiit�tb...,," p ".' ",I . ...." '''. ,,,.)1,,,,..,."....." . ,.' ." G� ' aC,er g,.., " :Witiii��~'~iS'~ii,fthai:l�i~m'\;~:;oi' ' .:y :the:: ." ':,Dt..saii�A::r~J.'.;,.�i�~JliX:ars~.� r ...:;~~,. ;iu:�ii'acw�~ A�sl iilIS'8ui:iiuuid,;�i . " .;.t:i(mi~iItiexte.an ';!Wr��....i�i!do.;a� ;': t adfriitol' WUHlt1"" /~\u n.r' wi' lhut:f�ll.~'CO~�ti�)n �buut. Wr~:iclo 1Ui:..aam':1i�r�ad;�;8l�l:/" '~:lti:B .:~ ";;",,., " rl'�Sima,;Ji dee~es8 . ,�r::deS '6�~lO.(i"'."��'';�i\e;:~is~.lo '.,: ,," .. 'i. ':i'l'::�i rentler �ii':Jle~s ,'" iln~tic��&f~' ~:�'" ,,' �id�;iii�1~�bta~.: ,fr�~' ''4o~I1g��i".~~~:ror'�X~1ivention,~,:l~I;~.ib��Il~:,S�te~.~:~�~~~:'~'~aU, �D dCl�ft.e# andl.�\.�nordng'!anyirlghtiHICCUJn,a:'a.re~t f r� n countdes on sad 1 EXHIBIT 2 . :..r. EXHIBIT 3 111111 IIWIII ~iiim 1111111111 1111I111111~1111111111~ iim I1III1111111 USOD5832494A United States Patent (19) Egger et ali (54) MEHOD AND APPARTUS FOR INDEXIG, SEACHIG AND DISPLAYING DATA (11) Patent Number: 5,832,494 Nov. 3, (4S) Date of Patent: 1998 Ge1bart & Smith, "Beyond Boolean Search: Flexicon, A Legal Text-Based Intellgent System," ICAl '91 (1991). Lin, "A Self-Organizig Semantic Map for Information RetrevaL," siom '91 (1991). Thrtle & Croft, "Intederence Networks for Document (75) Inventors: Danel Egr, Duham; Shawn Sauers, Mebane, al of N.C. Canon, Hilborough; Ronald D. Remeva!," SIGR '90 (1990). Uzzi, V-5arch Integration Toolkt for Folio Views, User's ManuaL, 6 Dec. 1995. (73) Asignee: Llberb, Inc., Durham, N.C. (21) App1. No.: 649,304 Uzzi, V-8earch Publiher's Toolkt, Beta Release 2.0, User's Manual, Dec. 8, 1995. (22) ..Filed: M�Y17;19967 Priary Exainer-Wayne Aibur Aaor~ Agent or Fir-Dorsy & Whitney lL Related U.s. Application Data (63) (S7J ABSTRCl A computer resarch tool for indexing, searchig and dis. playig data is disclose. Specmcay, a computer research Contiation-in-part of Ser. No. 76,658, Jun 14, 1993, PaL No. 5,544,352. (51) (52) (58) (56) Int. CI.6 ..................................................... G06F 17/30 U.S, ei. ................................ 707/102; 707/104; 70715 Field of Searc ..................................... 707/1�1, 104, 707/5 tool for performing computerize research of data includig textal objects in a database or a network and for providig a user interface that signcantly enhances data presentation is described. Textual objects aud other data in a database or network is indexed by creating a numerical representation of References Cited U.S. PATNT DOCUMNTS 4,868,733 9/1989 Fujisawa et ai. ........................... 70715 the data. The indexig technique called proxity indexig generates a quick-reference of the relations, patterns and simarity found among the data in the database. Proximity indexing indexes the data by using statitical techniques an empincaUy developed algorith. Using this proxiity 5,265,065 11/1993 Turte ...................................... 395/60 5,287,493 2/1994 Jacopi ......................................... 707/4 index, an �ffcient search for pools of data having a particular relation, pattern or charcteritic can be effectuated. The 5,386,556 1/1995 Hedln et al. ............................... 707/4 5,471,611 11/1995 McGregor ................................... 70714 5,544,352 8/1996 Egger .......................................... 707/5 5,546,517 8/1996 Marks el al. ............................ 707/501 5,586,311 12/1996 Davies et al. ............................... 707/1 5,630,120 5/199 Vachey ....................................... 707(2 5,649,193 7/1997 Sumiia et al. .......................... 707/1� Computer Search program, called the Computer Search Program for Data represented in Matrces (CSPDM), provides effcient computer search methods. The CSPDM rank orders data in accrdance with the data's relationsbip to time, a paradigm datu. or any simar reference. An alternative embodiment of the invention cmploys a cluster li generation algorithm which uses li and nodes to index and search a database or network. The algorithm searches for direct and indiect lin to a search node and retreves the OTIR PUBLICATONS Agost, et a1., "a Tho-level Hypertext Retrieval Model for Legal Data," SIGm '91 (1991). Fowler, et aI., "In1egratig Query, Thesauru and Documents nodes which are most closely related to the search node. The user interfce program, caed the Graphical User Interface Through a Common Visua Reprentation, " SIGm '91 (1991). Rose & Belew, "Legal Information Retreval: A Hybrid Approach," lCAL '89 (1989). Belew, Richard, "A Connectionist Approach to Concptual Information RetrievaL," ICAIL '87 (1987). (GUI), provies a usr frendly method of interacting with the CSPDM progam and prepares and presents a visual graphical dilay. The graphical dislay provides the user with a two or the diensional spatial orientaton of the data. 33 Clafms, 56 Drawing Sheets f"' ~~ . ~~-~ , Wi' = i_. t'l. i """or' i-�.... / .= == - "" =- ~ ~. Wl," ,.br �. .1 == r- EXHIBIT 3 IIIIIIIIII~IIIIIIIIIIIIIIIIIIIIIIIIIIIIII ~iiiiiiiiiiii 11111111111111111 USOO6233571Bl (~) United States Patent Egger et al. (10) Patent No.: (45) Date of Patent: US 6,233,571 Bl May 15,2001 (54) METHOD AND APPARUS FOR INEXIG, SEACHIG AN DISPIAYIG DATA (75) Inventors: Daniel Egr, 2027 W. Club Blvd., c) Rose & Belew, "Legal Information Retreval: A Hybrid Approach," lCAL '89 (1989). d) Belew, Richard, "A Connectionist Approach to Concep- Durham, NC (US) 27705; Shawn tual Information Retrieval," lCA '87 (1987). (List contiued on' next page.) Cannon, Hillborough; Ronald D. Sauers, Mebane, botl of NC (US) (73) Asignee: Daniel Egger, Peachtree City, OA (US) ( � ) Notice: Subject to any dilaimer, tle tenn of thi Primar Examiner-Jayne Anbury (57) patent is extended or adjusted under 35 U .S.C. 154(b) by 0 days. (74) Attorney, Agent, or Firm-Dorsey & Whitney ILP ABSTRACT A computer research tool for indexig, searching and di playing data is disclosed. Specifcally, a computer resarch (21) AppL. No.: 09/071,120 (22) Filed: May 4, 1998 tool for performing compterid research of data including textual objects in a database or a network and for providig a usr interface tlat signicatly enhance data preentation is described. Textal objects and other data in a dataas or network is indexed by creating a numerical represntation of Related U.S. Application Data (60) CDiviSi��f�plicitiO�N�.~/.649,304:"fiea�iMay.17i 1996; now Pat. No. 5,832,494, which is a contiuation.inpai of application No. 0876,658, filed on Jun. 14, 1993, now Pal. No. 5,544,352. the data. The indexig techne called proxiity indexing generates a quck-reference of tle relations, pattern and similarity found among th data in tle database. Proximity indexig indexes the data by using statitica techniques and empincaUy developed algoritms. Usin th proxiity (51) Int. CI," ........................................................ G06F 7/00 (52) U.s. Ci. .......................... 707/2; 707/3; 707/4; 707/5; 707/530 (58) Field of Search ...................................... 707/2-5,530 index, an effcient sech for pools of data havig a particula relation, pattern or characteristic can be effectuated. The Computer Search program, called the Computer Search Program for Data represented in Matrices (CSPDM), pro- (56) Reference Cited U.S. PAT DOCUMENTS 5,265,065 11/1993 TuiUe. vides effient computer search metlods. The CSPDM rank orders data in accrdance wih tle data's relationship to time, a paradigm datum, or any similar reference. An alternative embodiment of the invention employs a cluster li generation algorithm which uses li and nodes to index and search a database or network. The algorithm searches for dirct and indieet lin to a search node and retreves tle 5,341,293 � 8/1994 Vertelnay et aL. ................... 700/205 5,446,842. 8/1995 Schaeffer et at .................... 700/205 5,530.852. 6/1996 Mese, Jr. el al, .................. 7rn/102 5,542,024 . 7/1996 Balint et.1. ......................... 3451356 nodes which are most closely related to the sech node. The usr interface program, called the Graphical User Interfce (List continued on next page.) OTIR PUBLICATONS a) Agosti, et al., "A 1\o-Level Hypertext Retrieval Model for Legal Data," SIOIR '91 (1991). b) Fowler, et al., "Integratig Query, Thesaurs and Documents Through a Common Visual Representation," siom '91 (1991). (GUI), provides a user frendly method of interacting with the CSPDM program and prepares and presnts a visual graphical display. The graphical diplay provides the user with a two or three dimensional spatial orientation of the data. 22 Claims, S6 Drawing Sheets =~~. ~ .... EXHIBIT 4 r, .. -)\ .. i j AS$IGNMEN� WHS, we, Daiel Egger, of 20' West Club Boulevard, Durham, NC 27705, Shawn Canon of 2429 Mandy Lae, Hiborough, NC 27278, and Ronald D. Sauers of 3330 Tranquil Trail, Mebane, NC 27302 have invented certai new and usefl improvements in a METHOD AND APPARTUS FOR IND�XIG, SEARCHIG AN DISPLAYING DATA, for wl�ch a application for Letters Patent of the United States has been fied, wl�ch may be identied in the United States Patent and Trademark Offce by Serial No. 08/649,304, fied May 17 , 1996� nnd ~~\e .\.1';\-..., r( )1-, ~'! 196 WHREAS, Liber=~c. ("Libertech"), a corporation organed and existig under the laws of the ~t of Call:ia, and havig a business address of 2200 West Main Street, Suite 230 B, Durham, North Carolia 27705, is desirous of acquirig the entie right, title and interest in and to said invention, said application and in, to and under any and all Letters Patent to be obtained therefor; \ -'._.i NOW, THREFORE, for and in consideration of One Dollar ($1.00), other good and valuable c01lideration to us in hand paid by the said Liberech, the receipt of which is hereby acknowledged, we have sold, assigned and transferred, and by tls wntig, do hereby sell, assign and tranfer unto said Libertec, its successors and assigns, our entie right, title and interest in and to said invention, said application and the Letter Patent, both foreign and domestic, that mayor shall issue, including all of our entire rights under International Conventions, and we do hereby authorize and request the Comu�ssioner of Patents to iS8ue said Letters Patent to the above mentioned Assignee in accordance herewith. We hereby authorize said Assignee, its successors and assign, or anyone it may properly designate, to apply for Letters Patent, in its own name if desired, iii any and all foreign COWltries, and additionaly to claim the fiing date of said United States application and/or otherwise take advantage of the provisions of International Conventions. Upon Said Consideration, we do hereby covenant and agree with the said .Asignee, its Bucceflsors and assign, tht we will not execute any writig or do any act whatsoever conflctig with these presents, and that we or our exeC'utorB or administrators wi at any time upon request, without further consideration, but at the expense of said Assignee, its successors or assigns, execute such additonal writings and do such additional acts as said Assignee, its successors or assign, may deem necessary or desirable to perfect the Assignee's enjoyment of this grant, and reder all necessar assistance in makig application for and obtaing origial, divisional, reissued, continuation, continuation-in-part, or extended Letters Patent of the United States, or of any and all foreign countres on said invention, and in 1 PATENT HEEL: 8035 FR.A: 0472 EXHIBIT 4 .... \ /)./ enforcig any rights occuing as a res1.ut of such applications or patents, by giving testiony In any proceedings or tranctions involving such applications or patents. IN WITNSS WHEREOF, we, Daniel Egger, Shawn Canon, and Ronald D. Sauers have signed and delivered th Assignment on the dates set forth below Date: Jv~"~" I '� If 6 Date: j",f1 I ,~ 111�' ~ Date:i�~ \�. \1~ ~ .,jJ .~�-~ ~ l ~ ~Egger 6 G\~tJ~ ��Ronald D. Sauers 'I STATE OF ) ) ss. COUNOF ) Eli" g$,. '2 9 Q.~ Notary Public ~ COmml!S!l Ex~ .Q.9~ :;aaD 2 REEL: 8035 FRA: 0473 PATENT EXHIBIT 5 r 'Delare 'Ie :f�rst State CHAGING ITS NA 1?OM "LlBERTECH INC," TO PAGE 1 I, HAIET SMITH WINDSOR, SECRETAR OF STATE OF THE STATE OF DELA, DO HEr CERTIFY 7!ll ATTACHED IS A TRUE AN CORRCT COpy OF THE CERTIFICATE OF AMNDMET OJ? "LIBERTBCH INC. "' , "SITE/TECHNOLOGIES/INC. ", FILED IN 'JIS OFFCE ON 'JBE 'JWEN'-SBCOND DAY OF AUGUT, A.D. 1996, AT 4 :15 O'CLOCK P.M. t I ~,Q';"J!" :':i'~�,~~~~~ ..~i~~~~:i, 2300985 8100 tl~.~~'k! r~i.",(.~~"?-~';:i~~)t'j ~~~9f~ Harret SmIth Windsor. 5ereau 0' State � i AUTHEICMION: 3622997 050040896 ~~.~~~/L~~~ DATE: 01-18-05 PATENT REEL: 015612 FRAME: 0398 EXHIBITS +d15496408� WILSO 5i:1NI F' 712 T-596 P-�0 i:G 22 '96 121 sa CEllFICAl' OF AMENDMET OF ARDCLES OF JNCORPRAnON OF lJERTE lNC. Danel Bgger ce�s tht: 1 He is thG pn;dent an the Gletaiy. grLiberech Joe. u DGlwae Corpomion (z_An��l�f�rtl A�elcs ofInrpon.of..coIPii��li'd&rt�id�i f�ll�Y: L II Are II G'natl.ofthis coijoraLon j~~SitJ.ecolo~esl� 3 The foresoiiig. ardment of Arcles ojTncorpriion has be duly approved by ~ bon of d�'econ 4 The fOl'egoin,s umen~ of Arcles of lntpa�or lu b~ duly appwved by 1b l'eqii voQf~ld~iDairi wi SMioo242 ofth Deii:warv COipia Code, 1lie number of sba voti in t.or ofthe umei eq or exce ihe vote reqi '�he perota voe required was nml' thn 50".4. 1 he totl nuber of outsand�n� sba oftbe �orpoJation is ),829.2 We firtcr dcvlar under pety of perj under the laws ofthc State of'DeJWle that the maers se forth in tis ceficae ar 1re and corec of our own laowlede �:_AU9\lSt._zi,J9~ STATE OF DELAUARE SECRETARV OF STATE DIVJsiON OF COr,PDRAT111S FILED 041 15 pn 0812211996 9scr460BS - 23009BS' ~~UC~"IUI i~ RECORDED: 01/27/2006 PATENT REEL: 015612 FRAME: 0399 EXHIBIT 6 Helen and Daniel Egger From: Sent: To: Cc: SFMendel~aol.com Thursay, July 03, 19976:16 PM DJatChryli~compuserve.com; deggercesiteiech.com; DFCobb(gaol.com; MEGellertceaol.com; sfngerhoodcedlc.com sskaer~gcounsel.com DeltaPoint Subject: We have now recivd firs drafts of the Stock Excange Agreement. Registation Rights Agreement and Non-Competin Agreement. Susan, Ron and ~ --__. - - --.--- - - ---- i tThe transation must be strctured as a stock e~hange, rather than a merger, I have gone over them and provided inital comments back to counsel for DeltaPoint. to make it tabl~ndmt�e companY' article.s_' ~to.make it a�S91u~y' SI~i:~ aii �~hangejs.a liq!:d.slionJ The Stock Exchange Agreement includes a provision that DeltaPoint will pay our deal -i related expnses up to an amount, which we hav suggested should be $40,000. ! We have approximately $50,00 on hand, so we should be able to use that ., amount for operations and the retirement of non-deal related liabilities. It looks as if. DeltaPoint will also asume existing liabilites on the balance sheet as of the closing. We are therefore adding to our balance sheet foregone salary for Ron and Shawn beyond the six month agreed to term wih the hope/expctation that DeltaPointwill pick them up. By adding them at this point we are not agreeing among ourselves that this sum is a liabilit of SiteTech's shareholders (Ron understands this). There is no holdback or esrow for indemnification purpose and we have asked that all proposed company's represntations and warranties by shareholders is for one year and has a $25,000 basket, i.e., the firs $25,000 of loss from such a breach represntations and warrnties of the shareholders as individuals be deleted (I think they will agree to that). The indemnifiction for breach of the are forgivn if the amount never gets any higher. For administratie purpose after the closing, we will probably nee to designate someone as the shareholders' representave. Who do we think that should be (not me, If that was on anyone's mind)? The Registation Rights Agreement is prett straight forward. It provis for those unlock dates, but Will be subjec to a 180 day market standoff aftr registration if the underer requires it. We have been told that Ron, Shawn, Anil and Dan will be asked to sign the -- i i � the lock up on the DeltaPoint shares to release 50% after nine months and the remaining 50% to after 12 months. The stock will be registered prior to J ' /) /~\ ',~. Non-Competiton Agreement. We are trng to convince them that Dan need not sign such an agreement. i am hopeful that we'll succeed in that regard. The restriction is for one year after termination of emploYment or two years from the closing. whichever is later. We expec the next set of drafts to arrive over the weekend and we will distribute them to the Board for everyone's review and approval at a telephonic meeting to be scheduled on Tuesday. In that regard. could I ask that Vicki set up that telephonic meeting and to include Susan Skaer in it '. , ) (415-237-7227). We're tryng to move this along as quickly as we can. Davi, you had mentioned that you had counsel standing by as part of Page 1 EXHIBIT 6 EXHIBIT 7 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 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 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 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 EXHIBIT 8 '.I-07-199 :2=27 GE. CC �s. 415 4~ 391 P.41/45 , I NQNmnnON -fc . Th NON~ON AGR, cl Juy -. 199 (tf u~ II in by ~, "StaD bc_ Dd 1i. i Ca CO tD ai (th BAQ;GJlVNQ I Sjt~.. a ~ coipni (',. pora to wh�� Jw ReLU Sit on th da hriev(the '" Da). �gwm da IL olth da be(tb "S Eiba ~ be ~ mi 1fs ~ iJ ei �i ii �J wilD ill ~ to tl Stoc EWJenp Stcckllis or wu lU (~ foer, stodJd an aie) arSil IWIm bc , ~co.tlb�o'si�If�' It ct Ji .ifinte _ b� i�Ddoi j ..ni!trad 'se o.pn v�-aaii tI in Ids 1010 II II emgowi II i 8~ T afwf St�Jdcr ba. an wm .. �fltirll Sit'. of Sit eu a ac i: in tl de il ~ ofSita'lJ imrb� �1 to "1 DeIi ba ~ed) an to pt an pm Dd gati IJ IR Sta Ex ~ Siodcls ~ ID ai Ino di A�ai in �o fi I~ ia 00 Lb DtllaPolt' II bi ii pelRumiJI un tb ac ec in ti A� hin rwly J1 to an no .. th du reui to, pr th go li hs �I ~ by Ddoi i. Nggq For t\,. t' th Et Dt cr �n yw fr tle teron at ei of St by Deomi an St. wtc: is roi~ Sttuer ee Dt bd t1 Iu II to im aerl ar an !C of Stoclc ah im ei fbr hi or Oil bo ofan oder Jl pi fi a�ewoo or caat i. my Certm ii wh Site or DaaI is aeYC enpd i� 1i (i) op at op 11 bu wb Is i� coit�ro wi UJ I7 of Sit or DelPoim �p or ~~ ~ 9�'(J (4) ta Uf acon to or do ai l' �D~ to dl buii ft Deof Cl S1 bues \1 Deoiat Of Site or to 4J it th lI bus ro wi DIta or Site. iii ca cu wi ra to a� bu Ope or cont~ by Sii ir ~ to or �id or mc to lii a� ax CUI of.D or Sit to CC da CG of Im - ai C�or ofSlc Oi �eoi 'J n� to an buli wb bu 1i BY ofDe'l Ot Sie', ~ 'M tap io lU hiipji op ~ Si iniltely pr to th da hI wtiu l& by D�ta In ad Im in wi coiu by Si II oftl du oftN ~ (2) au as lU milo.. ad or ha be CI ar co'�ate by Sit iiy pror to ti di bn ~i) ;oHci or ~ . ~ ~ 'J 'J !I fo IN(!N t�Il' ~:L1 �Sll�i EXHIBIT 8 EXHIBIT 9 ~,...~l~ Jt~j.:R~~=l~j'~':~~ ~:,'.!...:.:"I~' .'.~ ',' ;' ',.. . SPECIAL TELEPHONIC; MEET~NG' OF THE BOARD OF DIRECTORS OF SITEfTECHNOLOGIESIINC. A special meeting of the Board of Directors of Site/technologieslinc., a Delaware corporation (the "Corporation"), was held at 10:30 a.m. (Pacific time), on::ulya7"1997''jia telephonic conference call upon notice duly made and given. Directors Douglas Cobb, Daniel Egger, Steven L. Fingerhood, David A. Jones and Stephen F. Mendel were present by telephone. Mr. Michael Gellert, Mr. Bil Strench, counsel to certain stockholders, and Ms. Susan J. Skaer, counsel to the Corporation, were also present by telephone. Ms. Skaer kept the minutes of the meeting. Mr. Egger asked if all directors could hear each other and they responded that they could and Mr. Egger called the meeting to order. Approval of the Stock Exchange Agreement ~. :~ I i Mr. Mendel requested that the Board consider the offer by DeltaPoint to exchange all outstanding shares of this Corporation's stock for shares of DeltaPoint Common Stock and royalties on SiteSweeper. Ms. Skaer next discussed in detail the provisions contained in the i~ ~i fl '~! '1~ ""- Stock Exchange Agreement and the Registration Rights Agreement. The directors asked many detailed questions including questions regarding the aggregate value of the transaction and the effect of the aggregate liquidation preference of the Preferred Stock on the other stockholders. 1 ~ "t ~t ~~ ~:l '.. " An extended discussion ensued. Upon motion duly made and seconded, it was decided: ~J ~ .', WHEREAS, the Board of Directors of the Corporation believes it to be in the best interests of the Corporation and its stockholders that the Corporation approve the proposed Stock Exchange Agreement (the "Agreement" by and between the Corporation and DeltaPoint, Inc., a California corporation, and for purposes of indemnification certain Preferred Stockholders of the Corporation. - WHEREAS. the Board has considered the offer including the value of all consideration from DeltaPoint and the fact that the aggregate liquidation preference of the Preferred Stock is greater than the value of the 550,000 shares of DeltaPoint Common Stock and the possible aggregate amount of the 5% net royalty on sales of SiteSweeper for one year after first commercial shipment. .)./ ,�L EXHIBIT 9 .:~":':t"..".;"." WHEREAS, the Agreement contemplates the hegotiat~ori;'exeoLJtion:aild';delivery . by the Corporation of certain additional agreements and documents (the "Related Agreements"), including, but not limited to, the Registration Rights Agreement, the Noncompetition Agreements and the Releases. RESOLVED, that the Agreement and the transactions contemplated thereby in substantially the form attached hereto as Exhibit A is hereby approved, with " such changes, if any, as the offcers of the Corporation shall deem necessary and appropriate and shall approve, with such approval to be conclusively evidenced by such offcer's signature thereon. RESOLVED FURTHER, that the execution and delivery of any amendments to the Agreement and of any of the Related Agreements in such form as the offcer ..~ of the Corporation by his signature thereon shall approve is hereby approved. RESOLVED FURTHER, that the offcers of the Corporation are hereby authorized and empowered in the name and on behalf of Corporation to execute and deliver the Agreement and any amendments thereto, the Related Agreements and all other documents, instruments and certificates as they may ~. . :�1'"'-.'" ." l � 1~ deem necessary or advisable in connection therewith and to take all such other actions as they may deem necessary or advisable for the purpose of effecting the transactions contemplated in the Agreement or the Related Agreements or in connection therewith. w: .; ,.:. "f .~:; L ;;,~ Amended Certificate of Incorporation Mr. Mendel requested that the Board approve a clarification to the Corporation's ) ., ::~ Restated Certificate of Incorporation. Ms. Skaer next discussed in detail the change to the Restated Certificate of Incorporation, The directors asked questions and a discussion ensued. Upon motion duly made and seconded, it was decided: ..� �: J. i~ 1RSOLVED, that Section 2(d) of this Corporation's Certificate of IncorJ::orati�� Lshall be amended to in its entirety to read as followsf -. ...-- , 2 "(d) Events Deemed a Ciqu��tion. In.tlie-event~�f (ifa-merger or consolidation of the corporation with or into any other corporation or any ~ther person or entity, other than a wholly-owned subsidiary of the corporation, (ii?'a�y other corporate reorganization, or (iii) a sale of all or substantially all of the) immediate!y prior to such. a subsection (i), (ii) or (iii) transaction are holders of~ �l'east~a~maJonty,oUhe-'oJllJg~!1es of tb,e_s_ucvilt.ngAor.acquiring cori:oration ssets or the stock of the corporation, unless stockholders of the corporation, G WP' SITETECH .\1J11.rrrs JUt \'897 .tt , 1.:,.'triY."''':I.'''' ':, :I:~. l:�mmecli�t�lythereafter, such ever�fs�all~�e tr�'�t�a asaJia�i~t��diss'olution? (winding.4p. within the meaning of this sec:~r' . " .~ ;j ~ ,:1 % :~/ '~~ .~ .~ .;i :~ oL ,:,1 RESOLVED FURTHER. that the Certificate of Amendment to Certificate of Incorporation (the "Certificate") which restates in its entirety Section 2(d) of this Corporation's Certificate of Incorporation is approved for filing with the Delaware Secretary of State, subject to such changes as may be agreed by the offcers in consultation with counseL. .i ,~ RESOLVED FURTHER, that the offcers of this corporation are hereby authorized and directed to solicit stockholder approval of the Certificate and, upon receipt of such approval, to cause the Certificate to be fied with the Secretary of State of the State of Delaware. J ;.~~. :.~ Approving Amendment of 1994 Stock Option Plan. � ;1 :" j . Mr. Mendel requested that the Board approve a clarification to the Corporation's 1994 ~ " Stock Option Plan. Ms. Skaer next discussed in detail the change to the Corporation's 1994 :i .;! Stock Option Plan. The directors asked questions and a discussion ensued. Upon motion duly \~ made and seconded, it was decided: RESOLVED, that Section 11 (c) of this Corporation's 1994 Stock Option Plan shall be amended in its entirety to read as follows: "(c) Merger, Asset or Stock Sale. In the event of a merger of the Company with or ;:0; " ,~, into another corporation, or the sale of substantially all of the assets or stock of the Company, each outstanding Option shall be assumed or an equivalent option or right shall be substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. The Administrator may, in lieu of such assumption or substitution, provide for the Optionee to have the right to exercise the Option as to all or a portion of the Optioned Stock, including Shares as to which it would not otherwise be exercisable. If the Administrator makes an Option exercisable in lieu of assumption or substitution in the event of a merger or sale of stock or assets, the Administrator shall notify the Optionee that the Option shall be fully exercisable for a period of fifteen (15) days from the date of such notice, and the Option will terminate upon the expiration of such period. For the purposes of this paragraph, the Option shall be considered assumed if, following the merger or sale of stock or assets, the option or right confers the right to purchase, for each Share of Optioned Stock subject to the Option immediately prior to the merger or sale of stock or assets, the consideration (wRether f? stock, cash, or other securities or property) received in the merger or sale of stock or assets by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of :.~ .,~ G. -\\1" SITETECff MTSVU yg,97 .~ .J ".t ~: :~; .. t �~ L ~~ EXHIBIT 10 STATE OF DELAWARE SECRETARY OF STATB . DIVISION OF CORPORATIONS FIXED 09:00 AM 07/11/1997 971231423 - 2300985 . :..~~~ ....t. ceRTICATE OF AMENDMENT pF .. CERnFICATE Of INCORPORATION SITE/TECHNOLOCI.ES/INC. ., a corpration organized and exiting under and by virt of the General Corpation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meting of the Board of DirectorS of Site\technologies\inc. held on July 8.1997, the Bord of Direcors duly adopted resolutons setting forth a proposed amendment of th Certifcate of incrporatin of said corporaion. decaring said amendment to be advisable and auorizing and direcng the offce and direcors of the corpratin to solici the consent of the stockhokleis of said corporation for consideration thereof. The resoluton settng forth said amendment is as folo: (BESd'LVED:Tlft�e.C�itif�ite of incrportion of this corpi�tibe amenCJd.. by changing seon B.2(d) of Article IV~thereof.so.that.as_amended said paragraph �,shall.b�.and i:ead.a.sJolloWS:) ~-, rUed) Eyents �eej� a uQUldtin. 'n the event of (i) ��iirer �f i consolidation of th coration wi or into any other airpration or I ) anyration. person Of entit. oter than a wholly-od subsidiary of aliJ other (ii) any other corporate reganiztion, Dr (iii) a sale of the co I or substantially all of the assets or the stoc of the corporation. unless ~ stocholders of the corpratin immeiately p�or to such a subsctiJn1 (i), (ii) or (ii) transaction are holder of at lest a majority of the votin2) securitie of th survi-ving or acquiring cooration immediately~ I threafter. such event shall be treate 8S a liquidation. dissolut�Q�r \~~ u~ ~ithin th meaning of this seion 2.1 SECOND: That therafter, the nessary number of shares of this cooratin's capitl stoc as required by Sectn 228 of the Geral Corption Law of Delaware consented by writen consent in lieu of a meetng in favor of the amendment THIRD: That said amendment was duiy adopte in accrdance wit the provisions of Secion 242 of th General Corpration Law of the Stte of Deiaware. 'r.. EXHIBIT 10 l / ...",~....\ IN WITNESS WHEREOF, SITE/UCHNOLOGIES/INC.. has caused this certifcate of July, 1997. '. to be signed by Ron Sauers, it Preident,.and Daniel Egger. its Secretar. this -l day #I BYo ~;D.�~ Rg . Piw ATTST:f~ .. Daniel E.gger, . crtary = O:\T�TAlJI .2. STATE OF DELAWARE SECRETARY Of STATE Dr VI 51 ON OF CORPORA lIONS FILED 12i 30 pn 04/03/1995 950073174 - 2300905 RETATE CERTIFCATE OF INCORPORATION OF LmERTECH. INC. Ubertech Inc.. a corporation oraned and existg under the laws of th State of Delaware, does hereby cert: 1. The na of the corporation ji; Liheith, Inc. The original Certficate of Incorporation was riec with the Secreta of Stte of the State of Delaware on June 15, 1992. 2, The amendent and restatement herin set fort has be duly approved by the Board of Dirtors of th corporation an by the stockholders of the corporatin purant to Section 242 of th General Corporation Law of th State of Delawar ("Delware Law"). 3. The amendmen and restateent herein set fort has been duly adopd purs to Section 245 of the Delaware Law. Th Retate Certcae of Incorpration retates an integrtes an1�rter amens the provision of the corpration's Certficate of Inorporation as heretofore amended. 4. The text of the Certificate of Incoiration is herby restated and am to read in its entiety as follows: ARTICLE I The nae of th corpration is Liberech Inc. ARTICLEll The add of th register off of th corpration in th Stare of Delaware is Cooration Trut Center, 1209 Orange Strt, in the City of Wilminton, Couty of New Castle. The nae of its registered agent at such ad is The Corporation Trut Company. ARTICLEm The purose of the corporation is to engage in any lawfu act or actvity for which corporations may be organ under the Geneal Corporation Law of Delaware. ar not declared or paid with respect to any fiscal year of the corporation. No undeclared or unpaid dividends shal bear or acnie interest. (b) Dividend Rights of Comon Stoc. Dividends may be declard and paid upon Common Stock in any fisl year of the corporation if dividends shall have ben paid or declared and set apar upon all shares of Seres A Preferred Stock an Series B Preferred Stock at the annual rates set fort in Section l(a) above for each quarr of such fisc year of the corpration, inluding th fisc quar in which such dividend upon Common Stock are declaed; provide, however, tht if dividends are declared on Common Stock, dividends mut likewise be declared at the same ra (assug, for such purose, the converion of all outsnding shars of Series A Preferred Stock and Series B Preferred Stock ino Common Stok as provided in Setion 3 hereof) with respt to the outstadig Series A Preferred Stoc and Senes B Preferred Stock, an payment of any such dividends shal be made contmporausly to the holders of Series A Preferred Stock, Series B Preferred Stock an Common Stoc (c) COnsnt. Eah holder of an outtading shae of Prferred shl be deemed to have consentd to any distrbutions made by the corpration in connection with the repurchase of shaes of Common issued to or held by officers, dirtors, employees or conslta of th corporation or its subsidiares upon tetion of their employment or services pursuant to agreements or as othrwise se fort in the Bylaws of th corpration providing for th right of said reurchase betwen the corporation and such persons. ; 2. Liguid�tion-Prefere�'�7-"II�t�veni�f any liqui��tion7"dissolution:-or "wining up of the corpration (or thc: deemed ocurence of such event pur to C-' ,subsection (d) below), either voluta or involunta. distrbutions to the sliehlder-�f1pe , corp.oriiuoDNshal be macl in th following mag (a) Amount of Liquidation Preferece. The holders of th Series A Preferred Stock and Series B Prcferr Stok shall be entitled to receive, prior an in preference to any ditrbution of any of th assets or sulus fuds of th corpration to the holders of the Common Stok by reason of their ownership of such stock, the amount of $1.00 per shae for each share of Seris A Preferred Stok then held by them an the amount of $2.283906 for c:ach shae of Seres B Preferred Stoc then hcld by them, adjuste for any combintions, consolidations, or stock distrbutions or divdends with repect to such shas and, in addtion, an amoun equal to al accrued but unai dividend on the Seris A Prferred Stok and Series B Preferred Stoc, respetively. If the assets and funds thus avaiable for distrbution among th holders of the Series A Preferr Stock an the Series B Prefered Stock shall be infficient to pennt th payment to such holders of their ful aforesad preferential amoun, thn the ene amoun of the asts an funds of the corporation legaly avaiable for ditrbution shall be ditrbute rably among the holders of the Series A Preferr Stock and Series B Prferr Stoc in suc a maer tht the amount to be distrbuted to each holde of Series A Preferred Stock an Seres B Preferr Stock NMGQ. W42(5P3) inl2~ -3- shalL equal the amount obtained by multiplyig the ent assets and fuds of the corporaon legally avaiable for distribution hereunr by a frction, the nuerator of which sha be th su of the prodct obtad by multiplying th number of shas of Series A Preferred Stock and Senes B Preferred Stock then held by the holder by the respectve liquiation preference of the Series A Prferr Sto an Series B Prferred Sto, and the denomitor of which shall be the su of the products obtained by multilying th tota number of shs of Series A Preferred Stock an Sees B Preferrd Stoc �1en outstaing by th reective liqudation preference Qf the Series A Preferrd Stock and the Series B Preferred Sto. (b) Distribution after Payment of Liquidation Prfernce. (M�i ijaym��t1i�s6een maae t�tle h�lders of tl Series A Prferred Stock an the SeIi�sUr' ,Preferred Stock of~the ful preferential amoun set fort in Section 2(a) above, the entit irestraiutg d.rably amogg of the corpration legally availle for distrbution, jf any, mi�ll;be �i m b n e assets and fu the.holders of the Series A Prferred Stok an Series B Prfe~ (Stok! subj~o.:me ii��tions set fort b�iow, amCthe h�iders of~Common Stock-i�n�r such that the amout distrbuted to eah holder of the coxporation's capital stk shal equl the amount obtaind by multiplying me entir asets and fus of the corpration legally available for distribution purant to this Secion 2(b) by a frction, th numerator of which sh be th su of me number of shares of Common Stoc then held by th holder and the num of shs of Common Stock issuble upon conversion of the share of th Series A Preferrd Stock an Series B Preferred Stok then held by th holder, an th denomitor of which sha be th su of the tota number of shares of Common Stock then outsta an th tota number of shs of Common Stock issuble upon conversion of the tota nu of shas of the Series A Prferred Stock and Series B Prferr Stock then outsdin; provided, however, th at such time as the distbution of liquidation preferences purt to ths Arcle IV, Secion 2 (inluding subsections (a) an (b) hereot) shall equ (i) $2.00 per shae of Series A Preferrd Stock or (ii) $4.567812 per sha of Series' B Preferred Stock, such holders of Series A Preferred Stoc and Series B Prferred Stock, as the cas may be, shal not be enttled to any furter distrbution pursuat to th subsetion 2(b) with repet to sbars of Series A Preered Stock or Series B Preferred Stock, as the cas may be. JT�er��:r~ahy remai�ing assetsand\ JfUiegily av;ilatlleJorJltrib,ltion hereuner_shall be distrbu~y_ro..e holders~o� the lCommon.Stok in a maer such tht the remaing amount distrbuted to each holder-of-Common Stok shall equal the amoun obtaed by multiplyi ih ente asse and fuds of the corpration legally available for ditrbution hereunder by a fracon, the nuerator of which shl be th nwnber of shars of Common Stock thn held by suh bolder, and the denomitor of which shal be the total number of shaes of Common Stock then outstading. (c) Shares not Treated as Both Preferd Stock and Common Stock in any Distrbution. Share of Prferred Sto sh not be entitled to be convert into shaes of Common Stock in order to parcipate in any ditrbutin, or sees of distrbutions, as shares of Common Sto, witout fist foregoing paripation in the distrbution, or series of distributions, as shaes of Preferr Stock. 035 NMGOK.W~I') -4- (d) Events Dee a Liquidation. In the event of (i) a merger or consolidaion of the corpration with or into any othr corporation or any othr persn or entty, othr th a whoUy-owned subsidiar of th corpration, (ii) any other corporate reorganation, or (il) a sale of all or substatially all of the asts of th corporation, unes shholde of th corporation imediately prior to such a subsection (i), (ii) or (il) traction are holders of at leat a majori of the voting senties of th suriving or acquirg corporation imediately threafr, such event shall be treat as a liquidation, dissolution or win up with the meag of ths Section 2. 3. Conversion. The holders of th Series A Preferr Stok an Series B Preferred Stock sha have conversion rights as follows: (a) Right to Convert an Automatic Conversion. (i) The Series A Prefered Stok sha be converble, at the option of the respective belders thereof, at any tim at the offe of ths corporation or any tranfer agent for such shas, ino fuy paid and non-asessble shes of Common Stok (calculad to the neart one-huedth of a share, fractions of less th onc-bith of a shae bein disregarded) of ths corporaon, ba upo the applicable Series A Conversion Price (as defid below) in effect at th tie of convelSion. The nwnbe of shas of Common Stok into which each share of Seris A Preferred Sto may be convered shal be equal to $1.00 divided by the thn cUrrnt Series A Conversion Pr. The pri at which eah sh of Common Stock sha be deliverable upn converion of the Series A Prferred Stck (herein someties referr to as the "Seres A Conversion Pri�") sh intiy be $1.00. Such initial Series A Coversion Price shall be subject to adjustment frm tie to tie in cert intas, as hereinfter provided in ths Secon 3. Ths corpraon shan make no payment or adjutment on account of any declard but unpaid dividends on the shaes of the Senes A Preferrd Stock surendered for conversion. (�) The Series B Prefer Stok shl be convertble, at the option of th respctive holders thf, at any time at the office of ths coiporaion or any trfer agent for such sh. in fuy paid an DOn-assessable sha of Common Stok (calculated to the nearest one-hundedth of a sh. frtins of les th onebudredth of a shre being disregarded) of th corpration, based upon the applicable Series B Conversion Price (as defi below) in effect at the ti of converson Th numbe of shes of Common Stock into which eac shae of Sees B Preferred Sto may be convert sha be eqal to $2,283906 divide by the thn curen Series B Conversion Price, Th price at which each shar of Common Stock shall be deliverable upon conveiion of th Serls B Preferred Stock (hrein sometes referr to as the "Ser B Converion Prce") shl intiy be" $2.283906. Such inti Series B Coversion Pr shl be subject to adjustmen fro tie to ti in �ert intaces, as hereiner provide in th Section 3. Ths corporation sha mak no payment or adjustent on accunt of any delar but unaid dividend on th sha of the Seres B NMOO.W42�SPJ) 03nll -5- EXHIBIT 11 '. i! d~�:t L6-1nr-g! STOCK EXCBNGE AGREEMENT This STOCKEXCHANGEAGREBMENT (ths "A�rementtl) Is Jniide and entere Into July -- 1991 among (I) Di=ltaoinL, tm:.. a CaJifom�a cororaion ("Delt.QiDl"). (ii) SIWteclin a Deliiware eooriiQti ("~"), (iii), only fot the purpse of Artietes l, VI lind VU of this Agre person or entities �st on the slgnatu iiages hereofunder the caption PrIncipal Site 8wckhal 5 (the "fi Sitci Sto�khplders"), and (iv), only for the purpose ofagoingto the ters of Articles 1 d VII of tlis Agrment, those persons or entities listed on the signatur pnges hereof undr the cation er Site Stockloldlls (the I1Qtbet Site Stockboldersll), RECtALS ._A._ _ ..T�e Boar �f Dirl. �( �ah�rs1t and DeILaPoi�t believ"e ft"i;in th"'best iot eit of': Ceab company and th.: ~~tjve stoclWldm.tltt DeltaPolnt aiquire al of the capita1stock of_ �!e.on th�;J iios seffoItherin (the "Acsitign") and, in furteraice therf; ha.ve apved the Acuisiti n. .. B. The stocklolde of S�b,~ have approved the Acquisition. .. .if C, Puruiut to the Acquisition, among otler things and subject to the tel1B iiiid con 'tions of thjs Agreement, iill of the issued and outsding shll of capitd stock of Site shall be convtlrtd nto the right to reeive certin shares of voting Common Stock of DeltaPint (" tl) and certin cah. O. .Site, Deltaoint and the Principal Site Stockholders des 10 inake cert repre laions and wlUti~ and other agomll in connection with the Acquisition. NOW. TftREFORE, iii l:iJnsideritian of the covenats, proises an reresentaions set rt herein, and for oter good and vaJiliible consideraion, intending 10 be legaly bound hereby th~ p ias ag as follows: ARCJ.EI 1l ACQUISION i.i Effec on Clijtal Stock. Subject to th terms an condition of this Agretent, b i " I the Acquisition and witliut any action on the par of Siie or the holder of an shas of Site Com the following shl occur upon the signing oflhis Agrent by all of I 1\ I, the pariea hereto: Ca) Coversion QfSite Serje:� B Pre�qe Srock. Each shar ofSer�es B Preti red Stock arSlte (collectively, the "Site S\i�; B Srock") iasiied �Id olrtading immediately at such t e WI1r \; i be caceled iid extmgu�shed and be COl1verted aumatically into the right to recoive (i) that num t of shars of Deltioint Common Stock eauaL to the Scri~ a Exhange ~atio (as defined below in thi Section 1.1), upon sW'nderoftlc certn�at~ reresetinii such shar or SIte Series B Stock in the provided in Section t.i and (ii) that iiount �fcasb (Plyable by che�k) equal to SlOO divi�ed by Aggg.to Series B Number (as defied below In this Section i.). (b) Conversion of Site Series A P!'rred Stpcl E8('., shii of of 11 I. i, Serics A Pre�� Site (collectively, the "Site Seres A Stock") issued and outsng immediatly at such time canceled and exinguished and be conve 4uiointicilly into the right to reeive (i) th number !I '~ _i �:0�d 16� . ct.1 . '�DoJ� �3 '�) .:1 9 i- INISNS lDSiirq 8T :!:r �EV'O'-W EXHIBIT 11 : d'1:� J.6-inr .gi DellaPoint Common Stok to lio issued hmundr in iicordee with the lenns of ths Agrement such shars shall be duly authized vi. idly issued, fully piiid and no-llllcssale by DeltaPoliit and n subjet to premptive rights creat by sttu�. Dcltolit& ArtjelE! oflnrporon Qr B)'laws or any igre el1t to whlch oeltaf'o�nt Is a tJ or by which It I; bound. ARnCLEV COVEANT 5. I Expenses. �U fes and exses incur~d in connecon with the Acquisition, incl Illi wilnout limiiiion, aU legal, aiunnng, ficial adisory, consulting and all other fe and expi se of third paries (IlIhird lii Expeisesll) inur by Oclt�ini or Site (but not its stockholders) oth t th lI to be satisfied pursuat to the tenns of S��tion 5.8 hmof shl be the obligit�on of oeltao�nt; him!ty;r, that Deltioint shall not be reponsible for remnable Third Par Exenscs for i11 b led time and expenses ofSlte exceding $(0 to 40,OOOii. The Principal SHe Stokholder shall be repoiisl Ie for, pr ri with repect to their relative owni:ship of Site ~pit stoc immediately ptior to the Acquisiti n. aU othr Third Par Expenses. 5.2 NQnoompetj�QIl Agrents. Concurrnt w�t th execution and deliver of this I i Agreement OcltaPoint and eah of Ron Sauer. Shawn Ciunon and AnU PeTcs.Da.Siiva are enteri g Into a Noni:om~tion Agrnt substitlally in th~ foro of Exhibit � heeto. 53 BSliistratjoQ Rjabl� Ai�eut. Concurrt with the cltecution and delivciy ofthi Agrement De!toint, Alla Kalan lnvestmeit Ron SiUet9, shawn Cannon. Anl PerOa.Sil and eac OftbO$il other persns or entities who orwhloh were prefemd stockholders ofSlre immedhi Iy Jli1ol'o ila Acquisition shall enter Into a Registriion Rights Agrment substtially in the fort of hereto. S.4 !6�1'lqymeat Q(SjiiEi�plii"� ConcUlent wiiii�Iie eA-;tlo;; deiivet oft ir - """�i:me�t~ Deltaoint a. to enter into in~Joyment ageemi:ntsrwith Ron Sauers Shawn Can� iU I: i \ i. i \ Aliil h employment ngtme.i shall ptoide that Deliaouit sat.~ae�? to Iich spac located In or ut Suc ~erDa.Silva (tlI: "E~~l,?yees").~n tetili.mJlW!~. will prvide offce ~mploya!~ Del _olnJ Raleigh North Ci1 I opetions iii such Icction sufch:titly to permit imi for such EinplQYee tht remain in Site's Dt Dettaoiiis employ and fund �tels th employment of such empi",yi:s that renio.in j Site's Ut �~ DeliaPolnt's employ until the laterof(i) the first iuiversa oftlil Agreement or (ii) th~date GCC lYing thre months afer DeltiPolnt gives writ~h hotice to such Employees of its �htet to ielooat the pace ot' their employment. I 5.5 A~PQintneni to DcltaPjnt Bpord. Concurrent witl the execution and deliver of Agreomei Stcpheti Mendo! iii b~lng appointed to serve as :i member of the Board of Directors of until his S\U�(ssor Is .,Ieed and qualified. ii 11 II 3 Ope issue. proposoo by Site to ~ $40~OOO. i~ KS::00M\~\:89781\5 -16. ,1 II L. TQd T65 . ON . '.001: ~ 'D .:1 9 .. ltUS!IJS 1.IOS1IM 6f :�;T i6;f 'i! ':, d'T= s: L6- ior -Ill 5.6 ~. (a) Deltanjnt agtes th for the firs 12 monihs af Fil't Customer Shipm nr (ll defined below) of SiieSweepiir 2 by DeltaPolnt or Sile, It or Site will pay to 111Q~e who receivo sh s of DeltaoinL Common Stock pursuat to this Agrment (I: "Holder") aggrgate royalties cnlcul ed at the ra of 5% oftlet revenuei, IfilYJ received by DeltaPoin! for wtiis ofSlteSweper 2 Of succeSSOf toucts sold I iceiiscd, sublicense or disl:ibute by DeltaPQint, Sile or any ofthe�l related or afliate eii �ties to unafHii thtd parcs. Such royaltes shall be pad to the Holders pto tata in accorance willi c respective number of shans of DeltaQint Common Stock teivc: by the Holders pllant to tfi Agreement. POt purpose of ths Section 5.6, tie ten "First Cusomer Sh�pmcntll shaH mean the conunel'ial shipment of SiteSweepei 2 b) Deltaoiiit or its i1gehts or custmers to any �tail distd utor or other customer lhat is: (i) paying a licens fe or purcha price therfor, (II) not an alpha or beta ire e..ituaion customer of such prduct and (i�) Itot a purchaser of the product thrug sales OVer the nternet or from ~ltaoint5 web site. Far the pir�os oftl�s Section 5.6, lhe tett "net revenues" sJia.1 me netl cas ~cipts less laXI'/j, duties oiu:ises, other gti!ttmenta chiies and fes of any kind, refunds, red relUrM. its and (b) Within fort-five (4S) days after the end of ea�h fis quaer during the monihs afer the Fir Cusmer Shipment of Sitewecper 2, Deltloint or Site will provide each the Holders with �. stment of net revenues an tl~ royalties due to !:e Holden

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