Appearances:
Mr. Jefferson Downing
Attorney at Law
530 South 13th Street
Suite A
Lincoln, NE for the Plaintiff

Mr. Terry C. Dougherty
Attorney at Law
206 South 13th Street
Suite 1500
Lincoln, NE for the Defendant

Also Present:  William Brown, President, Corn Card International

1.
Page 7, lines 14-16, Downing Question:
Can you tell me what duties and/or responsibilities you have with the Industrial Agricultural Products Center?

Page 8, lines 9-11Odabasi Answer:
I have also helped them negotiate research agreements from various parties and licensing agreement from various parties.

2.
Page 9, lines 8-9, Downing Question:
When do you recall first hearing about Corn Card International?

Page 9, lines 10-14, Odabasi Answer:
It would have been the first time was February of 1997.  I was forwarded an agreement from the law firm of Holland and Hart.  I believe the attorney’s name was Stanley Soper.  And was forwarded the agreement to review.

3.
Page 12, lines 1-2 Downing Question:
When you were contacted by Mr. Soper, what did you do in response to that communication.

Page 12, lines 3-6 Odabasi Answer
I received a copy of - - it was a rough draft copy of a Technology Licensing and Research Agreement.  And I reviewed it.  But I did not take any immediate action on it.

Page 12, lines 11-12, Downing Question:
What do you recall happening next with regards to the Corn Card Agreement?

Page 12, lines: 14-15: Odabasi Answer:
I redrafted the agreement as a simple technology agreement.  I did not focus on any research aspects.

Page 13 lines 18-21and lines 23-24, Downing Question:
Why did you not take any immediate action when you received the licensing and research agreement, which I believe you told me you received in February of “97?

What was the reason for the delay until June?

Page 13 line 25 and Page 14 lines 1-5, Odabasi Answer:
I don’t recall.  At the best I could only speculated that I was busy with other maters.  I’m frequently busy with lots of things.  And sometime my work, you know, is such that it takes an entended period of time for me at times to be able to address situations.

4.
Page 18, lines 2-5, Downing Question:
Do you recall having any discussion with Dr. Helmuth about rights beyond North America being granted to Corn Card prior to the time the agreement was executed?

Page 18, line 6, Odabasi Answer:
No.

5.
Page 48, lines 15-16 Downing Question:
What is Mr. O’Farre;;’s opinion regarding Corn Card International?

Page 48, lines17-21, Odabasi Answer:
I think there’s a - - well, Walter’s opinion, I feel, is that Corn Card International could potentially not generate the type of sales a larger company could based on the fact that they’re a samll operation.

Page 50, lines 11-12, Downing Question:
When did Mr. O’Farrell begin voicing some of these opinions to you about Corn Card?

Page 50, lines 13-15, Odabasi Answer:
Well, really, when - - it would have been in late 1998, around December when some of the issues of this case came out and were - -.

6.
Page 47, lines 13-17, Downing Question:
That sentence in the earlier draft of the O’Farrell mem, the one that says keeping businesses like CCI out ot the picture, was apparently eliminated from the later draft.  Do you know why?

Page 47, lines 18 -23, Odabasi Answer:
Yes, Walter and I discussed this before he turned in the final draft to Don Helmuth.  And it was my feeling that there were some editorializing in this memo that was - - may have reflected Mr. O’Farrell’s opinions but did not necessarily reflect the facts of the meeting.

Page 51, lines 14 - 19 Downing Question:
Mr. O’Farrell had written in the earlier draft that, quote “Obviously this is CDP’s way of giving us the brushoff becasue of past antics,” close quote.  That setence was eliminated from the later draft; is that correct?

Page 51, line 25 and Page 52 Lines 1 - 5 Odabasi Answer:
Again I felt it was Walter editorializing.  That’s not a factual statement.  It’s his interpretation of the information that was obtained at Cargill Dow.  So I felt that that type of editorializing didn’t belong in the memorandum.

Page 53 lines 11 -19, Downing Question:
 Mr. O’Farrell wites in his memo that “From prior discussion with his wunderkend Pat Gruber - - “Mr McCurry was well aware of the distaste for IAPC antics.”  What do you recall about Mr. McCurry being aware of and the facts regarding this statement?

Page 53, lines 20- 25 and page 54, lines 1-3, Odabasi Answer:
All I remember - - I do remember one statement that was made.  As we were talking to Mr. McCurry, Walter mentioned something about our earlier meeting with Pat Gruber.  An Mr. McCurry, Dr. McCurry, said he was well aware of the situation.  And that was really all that was said.  I don’t recall anything else being said other that he are well aware of the situation.

7.
Page 56, lines 16-19, Downing Question:
Did you also mean that had the university known about the existence of the prior agreement that you would have done something differently with regard to the Corn Card TLA (technical licensing agreement)?

Page 56, line 23, Odabasi Answer:
No, I don’t think so.

Page 58, lines 7-9, Downing Question:
All right, So had you known about the agreement, you would have done something differently with regard to Exhibit I, the TLA (technology licensing agreement)?

Page 58, lines 17-23, Odabasi Answer:
We would have - - before we signed the agreement, we would have talked to Cargill again about the patent application and the resulting technology; and in the event that they wanted co-ownership rights, we obviously would have included them as a part to this agreement at that time.

Page 59, lines 7-8, Downing Question:
And ultimately that what you did finally in 1999, is that correct?

Page 59, line 9 Odabasi Answer:
Yes.

Page 59, lines 10-13, Downing Questions:
And why would you have done that differently in July of 1997 had you known about the prior Cargill agreement?

Page 59, lines13-25, Odabasi Answer:
To cite them as co-owner would have been to define all the players that had an owership interest in the agreement.

Now it would not have been necessary to have done so legally.  A joint owner of technology may - - or joint owner of intellectual property may dispose of the intellectual property as he or she sees fit and can issue exclusive licenses and whatnot.

Page 60, lines 9-13, Downing Question:
So you believe that when you’re entering into a licensing agreement, that you do not - - you are not under an obligation as the licensor to fully portray who owns the technology to you licensee?

Page 60, lines 14 - 1, Odabasi Answer:
I don’t know that you are obligated to do so, no.

8.
Page 63, lines 21 - 25, Downing Question:
With regard to - - well strike that.  Before I ask you specific statements, let me ask you this general question, did you ever formulate the belief that Corn Card was in breach of the Technology Licensing Agreement?

Page 64, line 1, Odabasi Answer:
Yes.

Page 64, lines 7- 8, Downing Question:
And to whom do you recall discussing whether Corn Card was in breach of the TLA with?

Page 64, line 9, Odabasi Answer:
Don Helmuth.

Page 65, lines 5 -7, Downing Question:
Why was nothing done before February 17, 1999, to advise Corn Card that it was in breach of the TLA?
 
Page 65, lines 8-9, Odabasi Answer:
It hadn’t come to our attention until that time.

Page 65, lines 21 -23. Downing Question:
All right.  How did it come to your attention that Corn Card had failed to provide business plans to the university?

Page 65, lines 24 -25 and page 66, lines 1- 4, Odabasi Answer:
We reviewed out files in both my office and Dr. Helmuth’s office.  And we didn’t have copies of the business plant, at least - - yes, we did not have copies of the business plant.  I know I didn’t have them in my file.  And I don’t believe Dr. Helmuth had them in his either.

Page 68, lines 7 -11, Downing Question:
Isn’t it true that you went lookinf for potential breaches in response to Corn Card advising the univerisyt through counsel of its intention - - well, of its belief that the university was in breach of the TLA (technology licensing agreement)?

Page 68, line 14, Odabasi Answer:
At that time, yes.

Page 68, lines 23 - 25 and page 69, line 1, Downing Question:
Can you tell me whether anyone at the university has reviewed the business plan of Corn Card and found it in any manner lacking or insufficient?

Page 69, line 2, Odabasi Answer:
No.

Page 69, lines 19-21,Downing Question:
Are you aware whether statements of sales, payments of royalties of any type have been provided to the university?

Page 69, lines 22 -25, Odabasi Answer:
Payments of royalties have been provided to the university.  But statement of accounting for those sales and royalties, I have not seen copies of those.

Page 70, lines 18 -21, Downing Question:
In what other way do you believ e Corn Card has breached the TLA (technology licensing agreement) through a failure to provide statement of sales, payments and records, if any.

Page 70, lines 22-25 and page 71, lines 1 -2, Odabasi Answer:
The only comment I would have on that is that the checks when they were received by out office contained no reporting at all of this amount of sales or of the calculation of royalties.  And in
addition, they were given to Mr. Biby and not directly to our office. [Gerald Biby’s comment, all checks received from Corn Card where mailed to the Industrial Agricultural Products Center IAPC), the accountant Belinda Gillam opened all mail for both Milford Hanna and Gerald Biby.  The checks in question were never send to Gerald Biby, nor did he have any control over them at any time.  This is just one of the attempts by the Office of Technology Transfer to place blame on Gerald Biby. An interview with Belinda Gillam will confirm that all checks to IAPC came to her and Gerald Biby had nothing to do with them at any time.]

Page 73, lines 11 -15 and lines 21 -24, Downing Question:
And isn’t it true that from time to time, licensees will send notices, payments, statement, what have to IAPC or one of its representatives rater than to the Office of Technology Transfer?

If it has happened, have you ever terminated a license for anyone else other that Corn Card because of the failure to send the statements or payments to your office?

Page 73, line 25, Odabasi Answer”
No.

Page 74, lines 19 - 22 Downing Question:
Have you ever terminated a license for failure to send the business plant, a failure by the licensee to send the business plan to your office as opposed to IAPC?

Page 74, line 23 -24, Odabasi Answer:
I can’t recall a situation where we have, no.

Page 75, lines 21 -25 and, Downing Question:
Have - - are you aaware of whether the university has ever terminate a license or accused a licensee of being in breach because that type of circumstances other than Corn Card International?

Page 76, line 7, Odabasi Answer:
Specifically about notices?

Page 76, lines 8 - 11, Downing Question:
The fourth subparagraph of page 2 of Mr. Dougherty’s letter, failure to properly provide notices and communications to the designated representative of the university as required under article 14.

Page 76, line 13, Odabasi Answer:
No, I don’t recall any specifically.

Page 77, lines 13 - 14 Downing Question:
Have you ever actually terminated a license for failure to provide the royalty payments?

Page 77, line 15 - 16, Odabasi Answer:
I don’t - - I - - not since I have been here, no.

9.
Page 83, line 6, Downing Question”
A December 11th, 1998 - -

Yes, a December 11, 1998, letter from Gerald Biby to Gemplus Corporation.  Do you see that?

When did you receive a copy of that letter?

Page 83, lines 17 - 19, Odabasi Answer:
It would have been probably the date of the fax, which is 2-15-99 - - 1999.  So February 15th of 1999.

Page 86 line 25 and page 87 lines 1-3 Downing Question:
So it is your understanding that Mr. Biby was reiterating this verbal commitment to Gemplus that they could have worldwide rights to this technology?

Page 87, line 4, Odabasi Answer:
Yes.

Page 87, line 15, Downing Answer:
I’m sorry.  Go ahead.  I’m sorry.

Page 87, lines 18 -25 and Page 88 lines 6 - 10 and lines 15 -22,  Odabasi Answer:
I think I became aware that Gemplus wanted worldwide rights sometime in it was either later October, early November of ‘98, sometime in there.

I know I had a conversation or an e-mail from Gerald that stated something to the effect that Gemplus was interested in obtaining worldwide rights to the technology?

But - - well, there’s a fax here - - excuse me, an e-mail here that Gerald sent on 11-12-98 to Susan Wharton, who is the patent attorney of record on the patent that has been filed on this technology.  And - -

And I believe in here that he states - - he givers here a letter that he has drafter to someone at Gemplus who is - - who is it to?  Christian LeRiche.  And talks about obtaining  - - talks about Gemplus potentially obtaining worldwide rights to the technology and talks mainly about the patent applications and some technical matters.

Page 89, lines 4 - 5 and Page 90 line 5 and lines 10 - 11 Downing Question:
So you were cc’d on September 9th, 1998, on an e-mail (Exhibit 44) to Susan J. Wharton.

What did you do in response to receiving Exhibit 44

Page 89, line 12, Odabasi Answer:
I did not do anything.

Page 90, lines 15 - 18 and 22 -23, Downing Question:
All right.  So as early as - - well, strike that.  Was this your first knowledge of the potential agreement between Corn Card and Gemplus?

. . .It’s a forwarded message regarding Christain Leriche at Gemplus.

Page 90, lines 24 -25 and page 91 line 1, Odabasi Answer:
Gemplus, Okay, Then that probably would be about the first I had heard of it.  Yeah, that would have been about the first I’d heard of it.

Page 91, lines 2 -4, Downing Question:
And even it it didn’t say Gemplu in the body of the text, it certainly says the largest producer of cards in Europe?

Page 91, line 5, Odabasi Answer:
Yes.

Page 91, lines 6 -9, Downing Questions:
Is that correct?  Why didn’t you e-mail back to Gerald or Susan and tell them that this would be a silly meeting or useless meeting since Corn Card did not have any rights to Europe?

Page 91 lines 10 -25 and Page 92, line 1, Odabasi Answer:
It’s - - we had discussed previously back in I think Arpril, March of ‘98 the granting of rights to countries to Corn Card, to foreigh countries, excuse me.  And we had ultimately offered and represented that we would consider granting rights on a country-by-country basis if they found a market in a country and could show commercial - - you know, commercial potential in that country.

So, you know, there was an expection there that they would be talking to people that did business in foreigh countries.  And you know, I don’t have a problem with them talking to people about that as long as they’re not representing that they’ve got right to which they have not fully - right which they have not fully exercised.

Page 92, lines 2 - 5, Downing Questions:
When you say rights they had not fully exercised, you’re agreeing tthen that Corn Card had some rights to countries outside of North America; isn’t that correct?

Page 92, lines 9 - 18, Odabasi Answer:
That was perhaps a misstatement on my part.  The - - let’see.  We had offered to them to amed the agreement on a country-by-country basis.  They, I guess, had, you know, the option to come back and ask for amedments on a country-by-country basis.

In other words, if they had a market in Spain, hey, we’ve got a market in Spain, can we amend the country - - the definition of territory to include Spain, as an example.

Page 92, lines 19 -22, Downing Question:
And you stated that it was as early as March or April that you became aware of Corn Card’s interest in potential customers outside of North America; is that correct?

Page 92 lines 23 - 25, Odabasi Answer:
Yes, It was probably - - I think the earliest I knew about it was January of that year.

Page 93, lines 1-5, lines 6-7 Downing Question:
Handing you what’s been marked as Exhibit 33, isn’t it true that on January the 5th, 1998, Bill Brown sent you the e-mail which is contained on Page 1 of Exhibit 33?

What did you understand Mr. Browns’s request to be in that e-mail:

page 93, lines 8 - 12 Odabasi Answer:
I understood it to mean, quote, “Would it be possible to change the definition of territory from the United States, Mexico and Canda to worldwide.” unquote.  That’s what I understood  it to be.

Page 94, lines 1-2, Downing Question:
And what did you understand Mr. Brown to be requesting in the 2-6-98 e-mail?

Page 94, lines 3 - 11, Odabasi Answer:
I understood him to be reiterating his request for worldwide rights, an ameendment to the agreement to that effect.

And then he also includes, “And for the financial products” - - excuse me, I should quote that.  Quote, “And for the financial products exclusion to be deleted, thus allowing us to create smart cards, debit cards, credit cards, et cetera,” unquote.

Page 94, lines 12 -14, lines 16 - 19 Downing Question:
So from this e-mail, did you understand that Mr. Brown was requesting the TLA be expanded to worldwide.

Did you also understand Mr. Brown was requesting on behalf of Corn Card that the exclusion in the TLA regarding financial card re removed?

Page 94, line 15 and line 20 Odabasi Answer:
Yes.  Yes.

Page 95, line 11 -12 Downing Question:
Was this your first respnse to his 1-5-98 and 3-6-98 inquires?

Page 95, line 13, Odabasi Answer:
Yes.

Page 95, line 25, Downing Question:
And who did you need to check with?

Page 96, lines 1-2, 4  and Page 97, lines 19 -20, 22-23 Odabasi Answer:
First of all, Don Helmuth.  And then I also checked with Gerald Biby and Milford Hanna.

When I spoke with Mr. Helmuth, he - -

He said he would agree to amend the territory on a country-by-country basis.

And he also said that we would maintain the exclusion of financial cards from the licensing agreement.

Page 98, lines 8 - 11, Downing Question:
And in the March 20th, 1998, e-mail, you stated that, “I think expanding the territory in your current agreement to worldwide is okay with everyone here.”

Page 98, line 12 Odabasi Answer:
Yes.

Page 103, lines 22 -25 and Page 104 lines 1 -4, Downing Question:
- - did the agreement provide that, “In full consideration of the premises and mutual covenants contained both herein and in the original license agreement, the parties hereto agree that section 1.4 of the orginal license agreement shall be amended to include the country, paren, countries, close pasre, of blank.”

Page 104, line 5, Odabasi Answer:
Yes.

Page 104 liness 8 - 11, Downing Question:
Was it your intention that when Corn Card had a potential customer in a country outside of the U.S., Mexico or Canada, that that blank could be just filled in with the country’s name?

Page 104, lines 12 -20, Odabasi Answer:
Upon notification and request of Corn Cared, we would draft - - we would insert the name of whatever country or countries into that section.  And I would then forward it on to Don Helmuth for review and potential approval.

Page 104, lines 17 - 20, Downing Question:
Had you ever been told that there were any countries that Dr. Helmuth or the university would have a problem with Corn Card doing business with customers in that country?

Page 104, line 21, Odabasi Answer:
No, I don’t recall any.

Page 104, lines 22 -25 and Page 105, lines 1-2, Downing Question:
Did you have any reason to believe that if Corn Card would have, for instance, identified a customer in the country of Austria, that if they submitted this and wrote Austria in the blank, that that request would not be approved by the university.

Page 105 line 6, Odabasi Answer:
No.  There was no indication of that.

Page 105, lines 7 - 15, Downing Question:
In fact, in your cover e-mail of April 17, 1998, didn/t you make the statement, quote, “ However, if you have a contact who wants to market under our foreign rights in a specific country or countries, just let us know.  And we will amend the orginal license to include these countries.  We can do this for any country or countries you wish,” close quote.  Did I read that correctly?

Page 105, line 16, Odabasi Answer:
Yes.

Page 105 lines 20 - 23, Downing Question:
So you actually made the affirmative statement that the license would be amended for any countries Corn Card wished; isn/t that what you conveyed in that statement?

Page 105, line 19 and Page 106, lines 8 - 20 Odabasi Answer:
Yes.
 
After I sent this e-mail, I assumed that this was a business decision that Corn Card International would need to make, they would probably need to discuss it amongst themselves and they would probably need to deveop some contact.  They had apparently been contacted by a few parties.  But I - - it’s reasonable to assume that they would need to follow up with those contacts to jedge their level of interest.  And you know, within, you know, as much time as it took them to develop such a contact, that they would then respond to me with a reuquest to begin the amendment process.

Page 106, lines 21 -24, Page 107, lines 1-5 Downing Question:
Well, isn’t it true that back in January of 1998, Mr. Brown had advised you that they had contact with people and a great deal of interest from potential customers in Europe?

And isn’t it true that within six or seven weeks of you forwarding this amendment to Mr. Brown, that you received other indications that they had a potential customer or customers in Europe.

Page 106 line 25 and Page 107 line 6, Odabasi Answer:
Yes.  Yes.

Page 107 lines 22 -25 and Page 108 lines 1-2, Downing Question:
Handing you what’s been marked Exhibit 47, that I will represent to you is a document that came out of Exhibit 42, your file that you reviewed for today.

Did you receive that document on June 2nd, 1998?

Page 108, line 3, Odabasi Answer:
Yes.

Page 108, lines 7-9, Downing Question:
And isn’t it true that in that e-mail, Gerald Biby forwarded you correspondence between Bill Brown and Frank Dorner at Digicard?

Page 108, line 10, Odabasi Answer:
Yes.

Page 108, line 11 - 13, Downing Question:
And did you understand that Digicard was customer that would have been outside the U.S. Mexico or Canada?

Page 108, line 14, Odabasi Answer
Potentially, yes.

End of Deposition Excepts.
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