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 8, lines 3 - 4 , Downing Question:
And what is your official position at the university?

Page 8, lines 5 - 6, Helmuth Answer:
Associate vice chancellor for research and director of technology transfer.

Page 9, lines 2-7, Downing Question:
All right.  Now, I’m just going to stand here; and we both look at this.

Moving from left to right, can you tell me what you have written and what you     oversee and just kind of use this to explain what your supervisory responsibilities are?

Page 9, lines 8 - 21, Helmuth Answer:
All right.  The dotted lines indicate supervision but not direct management.  They have their own directors.  That’s University Press, university museum.

Direct-managed operations are research grants and contracts, which is preward process; research compliance services, which is maintaining a federal mandate on any number of programs; the Research Council, which is a faculty body; proposal writers, which hep the faculty and external organizations write proposals; research finance and operations, which is actually a one-person operation; and the Technical Transfer Office.

[Gerald Biby Comment: Don Helmuth failed to mention that his listed positions where only at the University of Nebraska-Lincoln (UNL).  He gave the impression that he served these functions for the entire University of Nebraska System.  There are equivalent research positions at the University of Nebraska-Omaha (UNO), University of Nebraska-Kearney(UNK) and the University of Nebraska-Medical Center (UNMC).  A computer search at both UNK, UNO and UNMC yielded no reference to Don Helmuth in anyway.  Also UNMC has its own technology transfer program.

 In addition, if you go the Associate Vice Chancellor for Research internet web page or the Technology Transfer office web page you will note they both are University of Nebraska-Lincoln web pages.  Donald Helmuth does not hold a university wide appointment either as assistance vice chancellor or research of director of technology transfer. Gerald Biby signed a FAX to Gemplus with an incomplete title description, “Technology Transfer Coordinator,” as opposed to “Technology Transfer Coordinator, Industrial Agricultural Products Center,” and the was denoucned by Darell Nelson, Donald Helmuth and others for overstating his authority.  The one difference is that, with the exception of this one FAX there were NO other instances of an incomplete signature block on any of Gerald Biby’s fax’s or e-mails.  The other is that Gerald Biby did not swear under oath that he had the position of Technology Transfer Coordination under oath, as Donald Helmuth has about his positions at the University of Nebraska-Lincoln.]

2.
Page 9, lines 22-24, Downing Question:
All right.  Now, in the course of this case, we have talked about something called the IAPC (Industrial Agricultural Products Center).  Where does the IAPC fit into this scheme?

Page 9, line 25, Page 10, linnes 2 -3 Helmuth Answer:
Literally it does not fit into that scheme.

I don’t have a direct oversight of them of their day-today business.

Page 10, line 4, Downing Question:
Who does have direct oversight of the IAPC?

Page 10, line 5, Helmuth Answer:
Oversight of it is Darrell Nelson.

Page 10, lines 21-25 and Page 11, line 1, Downing Question:
And I guess my question is, for a project that is being developed by IAPC, why isn’t it Darrell Nelson or someone with that division of the university who signs things like a licensing agreement, to the extent you know or can develop that for me?

Page 11, lines 2- 8, lines 13 -14, Helmuth Answer:
it is centralized and tightly contrlled for all licensing agreement and tech transfer operation in the univesity so that these is a single point so that there are not obligations made that the university can’t fullfil.  Same this is true with all research grants and contracts.

There is a dollar limit on that.  If it’s over I thing $250,000, the regents have to approve it.

[Gerald Biby Comment: The Gemplus research proposal was in the amount of $350,000.  Yet if was never presented to the board of regents.  It was unilaterally stopped by Donald Helmuth.  First for the reason, the UNL did not owned the intellectual property.  Then in February because Corn Card was in his perception “in default” of their licensing agreement.  Common sense and the chain of command suggests that the regents were the only ones that had the authority to accept of reject the proposal sent to the Technology Transfer Office by the IAPC.]

3.
Page 12, lines 24 -25 and Page 13, lines 1-2, Downing Question:
Okay, Though you cannot give me a time frame, tell me how it first came to your attention and what you first discussed with anyone.

Page 13, lines 3 -5, Helmuth Answer:
The earliest conversation I can remember was probably with Gerald alone.  And Gerald was strongly advocating this agreement.

[Gerald Biby Comment: To the best of my knowledge and belief, I never meet with Donald Helmuth alone to discuss this or any other project.  When I went to his office, Milford Hanna accompanied me.  When he can to the IAPC, the meetings were in Milford Hanna’s office and Milford was present.  All the discussions I had about the Corn Card Agreement were with Turan Odabasi, prior to its being signed.  The only discussions about the Corn Card Project, that took place, after the agreement was signed, with Dr. Helmuth was giving him sample or the cards for him to show other people.  Turan Odabasi’s deposition also indicates that Gerald Biby was dealing directly with Turan and Donald Helmuth was not a part of the Corn Card Agreement, except for the interaction between Turan and Helmuth.]

4.
Page 20, lines 2 -5, lines 7 -8, Downing Question:
At any time were you in possession of information which led you to believe that they agreement could not be implemented but not share that information with Corn Card International?

When did you first become aware of the Cargill problem?

Page 20, lines 9 -10, Helmuth Answer:
Late September or early October, that there were comment about a Cargill problem.

Page 20, lines 11 -13, Downing Question:
There were comments about a Cargill problem.  How did you - - from who did you first heat those comments?

Page 20, line 14, Helmuth Answer:
I believe Walter O’Farrell.

Page 21, lines 2 -4, line 7,Downing Question:
Does that refresh (Exhibit 51, page 14) your recollection regarding your contact with Walter O’Farrell in early September 1998?

Did you read it on or about that time?

Page 21, line 11, Helmuth Answer:
Probably a week or two after that.

Page 21, lines 17 -19, Downing Question:
I’d like for you to review - - turn back to page 48 of Exhibit 51, please.  Do you recall seeing that document before.

Page 21, line 20, Helmuth Answer:
I believe so.

Page 21, lines 21 - 23, Downing Question:
Do you believe that you read it at or about the time it arrived at your office of September 8, 1998?

Page 21, lines 24 -25, Helmuth Answer:
No. It likewise, was probably glanced at some time after that.

Page 22, lines 1- 5, line 7,Downing Question:
Now, you do believe that you read - - well, strike that.

You say you glances at it.  Yo don’t believe that you read the document at or about the time it was received.

Why not?

Page 22, lines 8 - 12, Helmuth Answer:
My mail was separated into action and for-your-information files.  And this would go into a for-your-information file.  The action file was the one that’s taken care of on a daily basis.

5.
Page 22, lines 23 -25 and Page 23, lines 1-2, lines 4 -6, lines 8- 9, line 11, Downing Question:
Lets look, first, then at the September 4, 1998, memo, which begins on page 48 of Exhibit 51.

That is a five-page memo from Mr. O’Farrell singel spaced, typewritten; isnt’t that true?

And didn’t Mr. O’Farrell give you a comprehensive report on his dealing with IAPC in his first three-and-a-half months on the job?

Had you asked Mr. O’Farrell to give you a review of his dealing with IAPC?

Why did you do that?

Page 23, line 12, Helmuth Answer:
Because we were doing a review of IAPC.

Page 23, lines 13 - 14, Downing Question:
And why were you engaged in a review of IAPC at that time:

Page 23, line 15, Helmuth Answer:
In concert with Darrell Nelson.

Page 23, line 16 -17, Downing Question:
And I’m asking what was the purpose of the review, to the best of your memory.

Page 23, line 18, Helmuth Answer:
Annual review.

Page 23, lines 19 -20, Downing Question:
Well, this is not a memo that reviews generally IAPC’s activities, is it?

Page 23, lines 23 - 25 and Page 24, lines 1- 2, Downing Question:
Well, isn’t it true that on all the five pages of this docuent, he only reviews IAPC as it related to Corn Card, Cargill and PLA?  And if you need to review this memo, you just tell me.  And we’ll let you take time to do that.

Page 24, lines 3 - 4, line 7, Helmuth Answer:
No, on page 49 he also talked about levulinic acid.

Last paragraph.

Page 24, lines 22 - 25 and Page 25, line 1, lines 3 -3 Downing Question:
Is there - - even when he mentions the term levulinic acid, isn’t it true that he is saying I was being pulled of the project involving scarce PLA and being put on the project for levulinic acid?

So even there he’s talking abput PLA; correct?

Page 25, line 5, Helmuth Answer:
Yes.

Page 26, lines 3 - 7, Downing Question:
And you have just been given a comprehensive memorandum, sometine in early September by Walter O’Farrell which fully details for you the PLA situation as it stood on September 4, 19998; correct?

Page 26, line 15, Helmuth Answer:
Yes.

Page 26, lines 13 -14, Downing Question:
Well, did you have any reason not to believe Walter O’Farrell?

Page 26, line 15, Helmuth Answer:
Yes.

Page 26, lines 16 -17, Downing Question:
What basis upon which did you have to no believe Walter o’Farrell?

Page 26, lines 18 -22, Helmuth Answer:
Conversations that I had head with Gerald where he had found sources for PLA and no comments that I can remember from Gerald or Milford that there was a show-stopping PLA availability problem.

6
Page 28, lines 15 - 16, Downing Question:
Did you know what Walter O’Farrell was doing in his first three-and-a-half months on the job?

Page 28, line 17, Helmuth Answer:
Generally.

Page 28, line 18, Downing Question:
Well, didn’t he report directly to you?

Page 28, lines 19 - 20, lines 22 -23, Helmuth Answer:
He was being coordinated by one of my other staff.

He was being managed by one of the other staff, supervised by me.

Page 28, line 24, Downing Question:
Who was - -

Page 28, line 25, Helmuth Answer:
Steve Frayser.

7.
Page 53, lines 23- 23, Downing Question:
At any time prior to September of 1998, were you aware of commitment that IAPC had made that were difficult or impossible to fulfill?

Page 54, lines 1- 2, Helmuth Answer:
I’m trying to go back five–and-a-half years and see.  Not that I recall.

Page 54, lines 18 -24, Downing Question:
I’d like to refer you to page 10, please, of Exhibit 51.  This purports to be a November 10, 1998, memo from Walter O’Farrell to you.

First of all, do you recall what pile this got put into on your desk, the FYI pile of the take action file?

Page 54, line 24, Helmuth Answer:
This, again, was probably FYI.

Page 54 line 25 and Page 55 lines 1 -6, Downing Question:
By the way, with regard to how your staff decided what pile to put things in, would you agree with me that if the staff placed a memo in the FYI file that said. Dr. Helmuth, your desk is on fire, that regardless of the fact that it’s in the for-your-informationfile, that you would probably take action in response to that memo?

Page 55, lines 7 -8, Helmuth Answer:
I probably wouldn’t see it until the desk had turned to ash.  The FYI files pile up.

Page 55, lines 21 - 24, Downing Question:
Do you recall now, having reviewed the November 10 memo, whether this was one that was for your information or that you found in your take-action file?

Page 55, line 25 and Page 56 line 1, Helmuth Answer:
This was probably is the FYI file.  But I do not know.

Page 56, lines 20 -24, Page 57, lines 1 -3, Downing Question:
Specifically the third bullet point of the November 10, 1998 memo relates to you that Mr. O’Farrell had seen an October 22nd story about Corn Card signing a marketing agreement with Gemplus; is that the one you’re referring to?

And do you recall seeing the coy of the newspaper article that is attached to the November 10 - -

Page 57, line 4, Helmuth Answer:
No.

8.
Page 59, lines 1 -4, Downing Question:
In response to learning about the Corn Card/Gemplus deal, did you direct anyone to take action to advise Corn Card of the PLA problem with Cargill?

Page 59, line 5, Helmuth Answer:
No.

9.
Page 59, line 25 and pages 60, lines 1 -3, Downing Question:
Is the marketing of the technology licensed in the agreement of the assisting of the marketing something that you would agree was within Gerald Biby’s duties.

Page 60, lines 4 -7, Helmuth Answer:
Identifying potential sources for expansion of license agreements and new licenses is certainly within one of the responsibilities that we would expect him to undertake.

10.
Page 60, lines 24 - 25, Downing Question:
Are you telling me you’re not even sure if you got this memo. (November 10, 1998)

Page 61, lines 1 -2, Helmuth Answer:
I don’t remember seeing the memo until last night

Page 74, lines 5 -11, Downing Question:’
Given the existence of the April 1995 Cargill agreement, do you believe that it was a misrepresentation for the university to state that it was the owener of technology relating to the production of the biodegradable polymer so stated in the first whereas clause of Exhibit I? (Corn Card Licensing Agreement)

Page 74, line 14, Helmuth Answer:
Yes.

Page 74, lines 21 -22,Downing Question:
How did you come in to possession of a copy of Exhibit 2.  (Agreement Dr. Hanna signed with Cargill)

Page 74, line 20, Helmuth Answer:
Was faxed by Cargill.

Page 74, line 24 - 25, Downing Question:
What did you do in response to seeing that agreement.

Page 75, lines 1 -2, lines 4 -5, Helmuth Answer:
I immediately sent it to an outside law firm for assessment.

To get a legal interpretation of the agreement.

11.
Page 75, lines 9 -12, Downing Question:
And did you, after receiving the legal interpretation, continue to hold the opinion that the university had violated the April ‘95 Cargill agreement?

Page 75, line 15, Helmuth Answer:
Yes.

Page 75, lines 16 - 17, Downing Question::
What did you next do after you learned about the Cargill Agreement?

Page 75, lines 18 - 21, Helmuth Answer:
I next set up a meeting in concert with Darrell Nelson with all of the university folk to see if there were any other situations that we were not aware of.

Page 75, lines 22 - 23, Downing Question:
Who do you recall being present at that meeting?

Page 75, lines 24 - 25 and Page 76, line 1, Helmuth Answer:
Milflord Hanna, Gerald Biby, Walter O’Farrell, Turan Odabasi, Darrell Nelson, Dale Vanderholn and myself.

[Gerald Biby Comment: This meeting, appx. January 19, 1999, was recorded by Gerald Biby in its entirety. A copy of this tape was provided to the Donald Helmuth Grievance Appeals Committee, grievance file appx. June 23, 1999. There was no discussion about any other situations, the entire meeting was about Cargill and Corn Card.]

12.
Page 77, lines 2 -5, Downing Question:
What do you recall being discussed about their dealings with Corn Card in that meeting?

Page 77, lines 4 -5, Helmuth Answer:
I can’t remember details of that.  The primary objective was this.

Page 77, lines 6 -7, Downing Question:
Primary objective was this means the Cargill Agreement?

Page 77, line 8, Helmuth Answer:
Yes.

[Gerald Biby Comment: Actual, if you listen to the tape, only about the first half of the 1.5 hour meeting was about Cargill.  The second half of the meeting was about Corn Card and how Donald Helmuth had hired two attorneys and that Corn Card was is default of the licensing agreement and how Corn Card had no rights to extend or expand the licensing agreement.  Copies of the tape, of the last half of the meeting, have been given to all the members of the Nebraska Board of Regents, Dr. Irvin Omtvedt, and Governor Mike Johanns and the Nebraska State Ombudsman’s office in November 1999.]

13.
Page 77, lines 23 -24, Downing Question:
Did you initiate the phone call: Or did someone from Cord Card Call you:

Page 77, line 25 and Page 78, lines 1 -11, Helmuth Answer:
I think there were several phone call.  There may have actually been a phone call before the meeting where there was a brief discussion about what we were doing processwise.  And there was at least one longer converation where I described what we hoped to end up was that Corn Card would bet the $150,000 from Gemplus and that the university would have the research program with Gemplus and the process we would follow in trying to negotiate this with Cargill so they would not be an impediment to anything that was going forward.

[Gerald Biby Comment: The conversation that Donald Helmuth had after the meeting, was tape recorded by Corn Card.  Copies of that tape was provided to the Grievance Appeal Committee on the Donald Helmuth grievance filed about June 23, 1999, against Donald Helmuth by Gerald Biby.   Copies of the tape, also have been given to all the members of the Nebraska Board of Regents, Dr. Irvin Omtvedt, and Governor Mike Johanns and the Nebraska State Ombudsman’s office in November 1999.  The statements made to Bill Brown, president of Corn Card International, made by Donald Helmuth, are contrary to the statements he made two days earlier at the meeting that Gerald Biby tape recorded.  At the meeting he stated that he had hired two attorneys and was going to break the Corn Card license because Corn Card was in violations of the licensing agreement.]

14.
Page 80, Lines 17 -25 and Page 81, lines 2 - 4, lines 6 -8, Downing Question:
(e-mail from O’Farrell to Helmuth, dated 12-11-98)  Mr. O’Farrell relates his discussion with an attorney from Cargill and then gives you suggestions about a potential meeting with Cargill.  He states in the first subparagraph that, “Gerald Biby, the one who’s end-run tacctics infuriated Dr. Patrick Gruber of Cargill years ago, should stay home.”

Do you see that sentence in the first subparagraph?

Do you know what - - well, stike that.  What end-run tactics did Gerald Biby engage in, to you knowledge?

Did you have any conversations with Mr. O’Farrell to try and discern what he was talking about”?

Page 81, line 9, Helmuth Answer:
No.

15.
Page 82, lines 7 - 16, Downing Question:
(e-mail from O’Farrell to Helmuth, dated 12-11-98) In the third subparagraph, Mr. O’Farrell talks about setting up a meeting with Cargill Dow with the purpose of securing PLA by convincing Cargill Dow that we know enough about the potential market for biodegradable smart cards, enough to convince them to offer us a joint development agreement to would with them to research biodegradable smart cards for marquis customers like VISA and Amex.  Do you see that portion of the memo.

Did you have an understanding as to what a marquis customer was?

Page 82, line 20, Helmuth Answer:
I have an inherent one.

16.
Page 83, lines 2 - 5, Downing Question:
In the next to the last paragraph of that memo, Mr. O’Farrell talks about hareebrained deals signed by Mr. Biby.  Do you know what he is talking about by harebrained deals.

Page 83, line 6, Helmuth Answer:
No.

[Gerald Biby Comment: Gerald Biby never signed any deals for the University of the IAPC.  The only things I signed, that some have been construed to be a deal, was the FAX to Gemplus, when I was trying to get them to commit to what they wanted and to identify what the university could provide.  And this was not send until after, I was given a hand written note from Milford Hanna, when he said he had talked to Dale Vanderholm (Darrell Nelsons assistant), who said that we should go ahead with the Gemplus agreement.  A copy of this was provided at the time of my corrective action hearing to Darrell Nelson.  Later copies were provided to Dr. Irvin Omtvedt. the State Ombudsman’s office.  Mr. O’Farrells statement is nothing more that a malicious comment and character assassination.]

Page 83, line 10, Helmuth Answer:
I’m not sure.

Page 83, lines 11 -13, Downing Question
Did you believe that Gerald Biby had entered into harebrained deals prior to December 11, 1998.

Page 83, line 14, Helmuth Answer:
Not to the best of my recollection.

17.
Page 85, line 16 -23, Downing Question:
(e-mail from O’Farrell to Helmuth, dated 12-11-98) Mr. O’Farrell makes some comments about, “What good does it do Nebraska to have Omaha resident Biby try unchecked to give a worldwide exclusive to Gemplus and Digicard when one third of all U.S.A. credit cards are produced in Omaha’s largest city by Omaha’s largest employer?”  Do you see that statement in the third to the last paragraph?

Page 85, line 24, Helmuth Answer:
Yes.

Page 85, line 25 and Page 86, line 1 lines 3 -4, Downing Answer:
Did you know what Mr. O’Farrell was Talking about it that paragraph.

What was your understanding of what he was talking about.

Page 86, lines 5 - 14, Helmuth Answer:
My understanding was that he was referring to the amendment request that had been received from Corn Card and conversations he had with Gerald, as well as his on going concern about various articles in publications; and the company that he’s referring to I believe is FDR (First Data Resources).

[Gerald Biby Comment: Since the last week in August 1998, Gerald Biby had not spoken to Mr. O’Farrell and to this date May 2, 2000, Gerald Biby has not spoken to Mr. O’Farrell.  The only persons Gerald Biby spoke to in December 1998 was Turan Odabasi.  On December 7th, after repeated calls and e-mails during the months of September, October, November and early December were not returned Gerald Biby went to Turans office and face to face updated him on the status of the Corn Card/Gemplus project.  The only other person from the Technology Transfer office that Gerald Biby spoke with was Donald Helmuth, when he called and said that the deal could go through, as-long-as Gemplus signed the research agreement before the University signed the assignment of the Corn Card license.  He instructed Gerald Biby to send him information about the Corn Card/Gemplus situation and send a copy of the information to Turan to draw of the research agreement.  Gerald Biby did both items as requested.

The issue of the Technology Transfer Office personal not returning calls or e-mails was discussed during the April 23, 1998, meeting with Darrell Nelson, Dale Vanderholm and Milford Hanna.  That meeting was taped recorded and copies of that tape we previous provided to the Grievance Appeals Committee on the Donald Helmuth Grievance and the state Ombudsman’s office.  Mr. O’Farrell’s comments about “Omaha resident Biby” were just part of a continuing, unprofessional aggression toward Gerald Biby.]

Page 86, lines 23 - 24, and Page 87 line 1,Downing Question:
Were you interest in that issue at the time you read this?

Did you undertake an investigation?

Page 87, line 2 and lines 4 -5, Helmuth Answer:
Yes.

That was part of the meeting that was scheduled as soon as it could be in January.  [Meeting was tape recorded by Gerald Biby]

17.
Page 87, lines 16 - 17, Downing Question:
What was you opinion in December of 1998 about the proposed Gemplus/Corn Card/ UNL deal?

Page 87, lines 18 -23, Helmuth Answer:
That Corn Card was going to request an amendment for part of its license getting assigned to Gemplus and then for that Gemplus was going to give Corn Card $150,000 and that there was a research agreement that would trail it what would go to the university.

Page 88, lines 2 - 3, Downing Question:
Did you believe that would have been a good deal for the University of Nebraska?

Page 88, line 4, Helmuth Answer:
Yes.

18.
Page 92, lines 10 -14, Downing Question:
Did you have any knowledge in January of 1998 about the activities of Corn Card International with regard to discussions they were having with potential customers outside of North America.

Page 92, line 15, Helmuth Answer:
Not that I remember.

Page 92 lines 16 -25 and Page 93 line 1, Downing Question:
All right.  Please turn to the second page of Exhibit 33.  This is a March 6th, 1998, e-mail from Mr. Brown to Turan Odabasi, following up on a request for territory expansion to read worldwide and to delete the financial products exclusion in the TLA (technology licensing agreement).

Does this refresh you recollection as to whether at any time through March 1998 you became aware of Corn Card making a request for an expansion of territory and the deletion of the financial card exclusion?

Page 93, line 2, Helmuth Answer:
No.

Page 93, lines 3 -5, Downing Question:
Do you believe that Mr. Odabasi ever notified you of this request in the spring of 1998?

Page 93, line 6, Helmuth Answer:
I do not recall such a notification.

19.
Page 93, liners 15 -19, Downing Question:
Were you surprised to see that Mr. Odabasi had advised Mr. Brown in that e-mail that, quaote “As far as the expansion of your territory to worldwide, I don’t think anyone will have a problem with that,” close quote?

Page 93, lin 20, Helmuth Answer:
Yes and no.

Page 93, line 21, Downing Question:
Tell me the yes, and then tell me the no.

Page 93, liners 22 -25 and Page 94, lines 1 -2, Helmuth Answer:
The tech transfer staff can do preliminary negotiations.  And expanding territories is one of the things that we hope happens with licenses.  So as far as doing preliminary stuff, that would be something that I would expect any of them to do.

[Gerald Biby Comment: There was no answer given to the second part of the question.]

Page 94, liners 19 - 24 and Page 95, lines 1 -8, Downing Question:
I'd like for you to review the next page of Exhibit 33 which is an April 17, 19998, e-mail authored by Mr. Odabasi which contains a second page which is a draft amendment to the Corn Card license agreement.  Tell we when you’ve had a chance to review it.

All right, Mr. Odabasi states, quote, “The relevant officials at the university feel that it is too soon to give away our entire portfolio of worldwide right to this technology,” close quote.

Who do you believe the relevant officials at the university would be regarding making a decision on worldwide rights?

Page 95, lines 9 -11, Helmuth Answer:
In this context, he would probably be referring to me, as well as input from the people who were involved with the technology.

Page 95 lines 12 -15, Downing Question:
Does this refresh your recollection as to whether Mr. Odabasi dicussed with you at least by April 17, 1998, the expansion of Corn Card’s territory?

Page 95, line 15, Helmuth Answer:
No.

20.

Page 96, lines 4 -6, Downing Question:
So as of September 1998, was it your understanding that Corn Card was requesting expansion of its territory beyond North America?

Page 96, line 7, Helmuth Answer:
Yes.

Page 96, lines 17 -20, Downing Question:
All right.  What, to the best of your recollection, do you remember telling Mr. Odabasi about the proposed expansion of Corn Card’s rights?

Page 96, line 21, Helmuth Answer:
That it should be pursued.

Page 97, liners 6 - 9, Downing Question:
And did Mr. Odabasi report back to you about whether the proposed countries that would be expanded into appeared to have this economic viability that you’re describing?

Page 97, line 10, Helmuth Response:
No, there was no response.

21.
Page 97, lines 11 - 16, Downing Question:
If Mr. Odabasi would have reported back to you that the market looked to be economically viable and would produce a profitable result for the university, would you have agreed to the expansion of Corn Card’s rights in September 1998?

Page 97, line 22, Helmuth Answer:
Yes.

22.
Page 97, lines 23 -24, Downing Question:
Would you please review Exhibit 44 and tell me if you’ve seen that document before”

Page 97, line 25 and Page 98, line 3, Helmuth Answer:
Yes, right, yes, I have seen it.

44. Yesterday.

Page 98, lines 4 - 10, Downing Question:
Okay.  Does it refresh your recollection as to whether - - may I come around to this side since I don’t have a copy on my side.  Does this refresh you recollection as to whether this was the instance which prompted Turan to visit with you about the expansion of territory for Corn Card?

Page 98, line 11, Helmuth Answer:
I do not know.

23.
Page 98, lines 20 - 25 and page 99, line 1, Downing Question:
All right.  Let me provide you with Exhibit 49, which is a September 8, 1998, e-mail from Gerald Biby to Turan Odabasi which includes as an attachement an e-mail from Frank Dorner of Digicard, an Austrian company, to Bill Brown, about a ski ticket product.  Have you seen that document before?

Page 99, line 2, Helmuth Answer:
I’m not sure.

Page 99, lines 3 -7, Downing Question:
Again, it is dated around this first part of September, 1998.   Does that refresh your recollection as to whether that may have been the transaction that prompted Turan’s inquiry about the expansion of territory?

Page 99, line 8, Helmuth Answer:
No.

Page 99, lines 17 - 19, Downing Question:
At any time prior to December, do you recall talking with Turan about deleting the financial products exclusion.

Page 99, line 20, Helmuth Answer”
No.

24.
Page 100, lines 5 - 7, Downing Question:
When you reviewed the Gemplus/UNL/Corn Card agreement, the first one, were you favorable to agreeing to Gemplus having financial cards.

Page 100, line 10, Helmuth Answer:
Yes.

25.
Page 105, lines 22 -25, Downing Question:
If you could have worked out the question of cost with regard to the patent filing, were you otherwise favorable to Gemplus having worldwide rights to the technology?

Page 106, line 3, Helmuth Answer:
Yes.

Page 108, line 25 and Page 109, lines 1 - 9, Downing Question:

Well, assume with me that the facts in this case will demonstate that the request was made in concurrence with Gemplus being brought to the table by Corn Card.  All Right?  And that Gemplus is the largest or one of the largest manufactures of caards in the world.

What is it about that - - about Gemplus not having the financial wherewithal or not being economically feasible, why - - did you have any basis upon which to believe that?

Page 109, lines 10 -11, Helmuth Answer:
We had had no discussions with Gemplus at all.  This came to us without any interaction with my staff that I was aware of.

Page 109, lines 13 -14, Downing Question:
Well Turan had been included in the disucssion with Gemplus since September; isn’t that true.

Page 109, line 15, Helmuth Answer:
I’m not sure.

26.
Page 109, lines 16 - 18, Downing Question:
Well, to your knowledge, you weren’t aware that your staff had had discussion with - - or was included in the discussions with Gemplus?

Page 109, line 19, Helmuth Answer:
That’s correct.

Page 110, lines 11 - 13, Downing Question:
Okay, So did you ask Turan as some point or when he became aware of the discussion between UNL, Corn Card and Gemplus?

Page 110, line 14, Helmuth Answer:
I don’t think I did.

Page 110, lines 15 -17, Downing Question:
So - - I though you just told me a few moments ago that no one in you office was aware of Gemplus until December of 1998?

Page 110, lines 18 - 21, Helmuth Answer:
As far - - I do not remember being aware of anybody mentioning Gemplus or talking about them until all of this information came out in December.

27.
Page 114, lines 22 - 23, Downing Question:
Well, are you aware of IAPC having discussion with potential licensees or clients.

Page 114, line 24, Helmuth Answer:
Yes.

Page 114, line 25 and Pagge 115, Lines 1 -2, Downing Question:
And they have the authority to engage in negotiations with those poetential customers of licensees, don’t they?

Page 115, line 3, Helmuth Answer:
They do not.

28.
Page 115, lines 4 -7, Downing Question:
Did Gerald Biby have authority - - or was it a - - strike tat.

Was it a part of Gerald Biby’s job to negoiate with potential licensees or clients of IAPC?

Page 115, line 9, Helmuth Answer:
Not to the best of my knowledge.

Page 115, lines 10 - 11, Downing Question:
Have you ever reviewed Gerald Biby’s job description?

Page 115, line 12 - 13, Helmuth Answer:
I have been told that there is not one that exists.

Page 115, lines 16 - 17, lines 20 - 23, Downing Question:
All right.  Can you tell me what Exhibit 7 is?

And what does it mean when a reclassification request is signed by the department head, the supervisor, the dean or director and the chancellor or vice chancellor?

Page 115, lines 24 - 25, Helmuth Answer:
It means that it’s being put into the hopper for human resources to review.
 

Page 116, lines 5 - 6 and lines 18 - 17, Downing Question:
Have you done any investigation into whether Mr. Biby’s job has been reclassified?

And did that reclassification - - well, when did that occur.

Page 116, line 18 and line 20, Helmuths Answer:
June.  “98.

29.
Page 118, lines 4 -5, lines 7 - 9, Downing Question:
Okay.  Have you ever seen a December 11, 1998, letter from Gerald Biby to Gemplus?

RE:  Intent to transfer license and enter cooperative research and license agreement, you have seen that document?

Page 118, line 10, Helmuth Answer:
Yes.

Page 118, Lines 11 - 13, Downing Question:
Okay.  Did Mr. Biby have the authority to confirm and accept this five-paragraph plan or proposal with Gemplus.

Page 118, line 14, Helmuth Answer:
No.

30.
Page 118, lines 17 - 22, Downing Question:
Despite your belief that Mr. Biby did not have the authority to enter into that agreement with Gemplus, why didn’t you go ahead and honor what he had committed to in writing?

Page 119, lines 4 -5, Helmuth Answer:
Again, as I stated before, it oversteps the bounds of the TLA (technical licensing agreement that we had.

31.
Page 119, lines 14 - 16, Downing Question:
Did Milford Hanna have the authority to bind the university in the document marked as Exhibit 2, the 1995 Cargill Agreement?

Page 119, line 18, Helmuth Answer:
No.

Page 119, lines 19 - 22, Downing Question:
Yet, you ultimately agreed to include Cargill as a joint owner of the technology rather that than just telling them to go fish; correct?

Page 119, line 23, Helmuth Answer:
Based upon legal opinion.

Page 120, lines 4 - 7and lines 10 -11, Downing Question:
Okay, So while you’re will to resolve the Cargill agreement based upon Milford Hanna’s unauthorized agreement, you were not willing to ratify the Gemplus deal?

Well, I’m asking what’s the difference between the two?

Page 120, lines 12 - 16, Helmuth Answer:
The ratification of this allows us to go forward with things with Gemplus which would be clear to everyone’s understanding and give Corn Card the $150,000 plus enable the university to do research.

32.
Page 124, lines 10 -11, Helmuth Answer:
That’s true.  Have you seen a copy of Exhibit 43, which is the University of Nebraska’s statement of claims against Corn Card?

Page 124, line 12, Helmuth Answer:
I believe so.

Page 124, lines 13 - 25, Downing Question:
In this document, the university is asking the arbitrator to terminate Corn Card’s licensing agreement or states that the university has terminated Corn Card’s licensing agreement.  And there are a couple of letters from you counsel contained or appended to the statement of claims.

Can you tell me what you know about any of the alleged breached that are contained on page 2 or Mr. Dougherty’s February 17, 1999, letter?

First of all, what do you know about Corn Card’s alleged breach of the Technology Licensing Agreement regarding failure to provide business plans to the university?

Page 125, lines 3 - 4, Helmuth Answer:
A business plan was provided but not to the office indicated on the TLA.

Page 125, lines 9 - 10, Downing Question:
You found out that a business plan had been provided to the IAPC?

Page 125, line 11, Helmuth Answer:
Yes.

[Gerald Biby Comment: At a January 1998 meeting, almost a month prior to the Dougherty letter, I disclosed to Donald Helmuth that IAPC had a copy of the business plan and that the University of Nebraska Kearney. Small Business Development Center had worked with Corn Card in the preparation of the plan.  And after the meeting a copy was sent to Donald Helmuth’s Office. (This meeting was tape recorded and copies of this tape were given to the Grievance Appeals Committee on the Donald Helmuth Grievance with an additional copy given to the State Ombudsman’s office.]

Page 126, line 12, Helmuth Answer:
Yes.

Page 127, lines 4 - 7, Downing Question:
Are you aware of any other instances in which a licensee - - a licensee’s TLA (technology licensing agreement) has been terminated due to the failure to provide a business plan in the second year?

Page 127, line 8, Helmuth Answer:
Not that I’m aware of.

Page 127, lines 19 -20, Downing Question:
In the ones that do call for it, do you know whether you have gotten yearly business plans for each year the license has been in effect?

Page 127, line 21, Helmuth Answer:
I do not specifically know.

33.
Page 127, lines 22 - 25 and Page 128, lines 1 -2, Downing Question:
Okay.  The second subparagraph in that letter states, “Failure to provide statement of sales, payments and records as required under article 4.3 and 5.”

What is your understanding of that failure.

Page 127, lines 3 -4, Helmuth Answer:
To the best of my knowledge, we have received no information in concert with that.

34.
Page 127, lines 5 - 6, Downing Question:
All right.  And the third subparagraph says, “Failure” - -

Page 127, lines 7 - 10, Helmuth Answer:
“To obtain the consent of the university regarding use of names and trademarks in connection with advertising, promotions or sales literature as required under article 8”

Page 128, lines 20 -25 and Page 129, line 1, Downing Question:
So if they’re down there working every day with Milford Hanna and Gerald Biby and they’re going to trade shows together and the university is creating documents and press releases, that in some was is a breach by Corn Card of this advertising policy because your office didn’t approve it?

Page 129, lines 2 -3, Helmuth Answer:
Those vehicles were not done in concert with the Technology Licensing Agreement>

[Gerald Biby Comment: All press releases were done either by the Institute of Agricultural and Natural Resources (IANR) communications office (primarily Vickie Miller).  The IAPC was told in 1993-1994 that only IARN could do press releases or anything like that.  The IAPC, Milford Hanna nor Gerald Biby ever did a press release about Corn Card.  IANR routinely did articles about Corn Card in their publications.  In fact, the public relations department on the UNL city campus even contact UNL’s public relations company and arrange for an article to be placed in Popular Science (appx. June 1998) Also the Nebraska Corn Board routinely did press releases about Corn Card and its new use for corn.  These fact can be verified by contact Vickie Miller, UNL public relations and the Nebraska Corn Board.  In a review of all the media publications I am not aware of a violation by Corn Card International.  Nor did Corn Card use the University in any of its promotional or advertising brochures.].

Page 129, line 19, Helmuth Answer:
No, we have not.

34.
Page 129, line 20, Downing Question:
And what is the fourth failure?

Page 129, lines 21 - 23, Helmuth Answer:
“Failure to properly provide notices and communications to the designated representative of the university as required under article 14.”

Page 130, lines 4 - 6 and lines 18 - 19, Downing Question:
Can you provide me with any specific instates.  Certainly I just showed you a little wile ago where they made a written request to Turan Odabasi for the expansion of the territory and to include financial cards.  He’s a member of you staff; correct?

Well, is notifying Turan Odabasi a failure to meet your policy?

Page 130, line 20 and lines 22 - 23, Helmuth Answer:
Under the terms of the agreement, yes.

Because the agreement states that it has to be me.

Page 132, lines 12 -14, Downing Question:
And you believe that the TLA ought to be read and constured literally, don’t you”

Page 132, line 15, Helmuth Answer:
Yes.

35.
Page 132, lines 16 - 19, Downing Question:
All right.  So if the university in the first whereas clause represents that it is the owner of the technolgy when, in fact, it is not, then that is a breach of the TLA, isn’t it?

Page 132, line 21, Helmuth Answer:
Retrospectively, yes.

End