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作者：spiderman 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
MICHAEL ZELENY, )
)
Plaintiff, )
)
vs. ) No. 01-02-CV 809286
)
ERIN YIER ZHU, et al., )
)
Defendants. )
_______________________________)
DEPOSITION OF ERIN YIER ZHU
Redwood City, California
Monday, October 18 2004
Reported by:
HEATHER M. COLLEY
CSR No. 10693
JOB No. 57249
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF SANTA CLARA
3
4 MICHAEL ZELENY, )
)
5 Plaintiff, )
)
6 vs. ) No. 01-02-CV 809286
)
7 ERIN YIER ZHU, et al., )
)
8 Defendants. )
_______________________________)
9
10
11
12
13
14
15 Deposition of ERIN YIER ZHU, taken
16 on behalf of Plaintiff, at 1001 Marshall
17 Street, Third Floor, Redwood City,
18 California, beginning at 11:15 a.m. and
19 ending at 5:36 p.m., on Monday, October
20 18, 2004, before HEATHER M. COLLEY,
21 Certified Shorthand Reporter No. 10693.
22
23
24
25
179
1 APPEARANCES:
2
3 For Plaintiff:
4 ROPERS, MAJESKI, KOHN, BENTLEY
BY: LAEL D. BELOATE
5 Attorney at Law
1001 Marshall Street
6 Redwood City, California 94063
(650) 364-8200
7
For Defendants Min Zhu, Susan Yuqing Xu and WebEx
8 Communications, Inc.:
9 BUCHALTER NEMER FIELDS & YOUNGER
BY: WILLIAM M. MILLER
10 Attorney at Law
601 South Figueroa Street, Suite 2400
11 Los Angeles, California 90017-5704
(213) 891-0700
12
WEBEX COMMUNICATIONS, INC.
13 GENERAL COUNSEL
BY: DAVID FARRINGTON
14 Attorney at Law
307 West Tasman Drive
15 San Jose, California 95134
(408) 435-7000
16 (No appearance.)
17 For Defendant Erin Yier Zhu:
18 PENINSULA LAW GROUP
BY: MONTGOMERY S. PISANO
19 Attorney at Law
789 Castro Street
20 Mountain View, California 94040
(650) 903-2200
21 (No appearance.)
22 LAW OFFICE OF JAMES M. BARRETT
BY: JAMES M. BARRETT
23 Attorney at Law
789 Castro Street
24 Mountain View, California 94040
(650) 969-3687
25
180
1 APPEARANCES (Continued)
2 Videographer:
3 DONOVAN BAUER
ESQUIRE DEPOSITION SERVICES
4 505 Sansome Street, Suite 502
San Francisco, California 94111
5 (415) 288-4280
6 ALSO PRESENT:
MICHAEL ZELENY
7 KEN CANTAMOUT, P.I.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
181
1 INDEX
2 WITNESS EXAMINATION
3 ERIN YIER ZHU
4
5 BY MR. BELOATE 185, 326
6 BY MR. MILLER 324
7
8 EXHIBITS
9 DEPOSITION PAGE
10 239 E-mail dated April 8, 1999; 1 page 243
11 240 E-mail string; 2 pages 246
12 241 E-mail string; 1 page 252
13 242 E-mail string; 3 pages 257
14 243 WebEx Business Plan Draft; 35 pages 263
15 244 E-mail; 1 page 268
16 245 E-mail; 1 page 269
17 246 e-mail string; 2 pages 271
18 247 E-mail 1 page 272
19 248 E-mail; 1 page 274
20 249 E-mail string; 1 page 275
21 250 E-mail; 1 page 277
22 251 E-mail; 1 page 277
23 252 E-mail; 1 page 279
24 253 E-mail; 1 page 287
25 254 E-mail; 1 page 289
182
1 INDEX (Continued)
2 EXHIBITS
3 DEPOSITION PAGE
4 255 E-mail string; 2 pages 291
5 256 Facsimile transmission; 26 pages 292
6 257 Corporate records; 116 pages 294
7 258 WebEx, Inc., stock certificate; 1 page 298
8 259 E-mail string; 2 pages 299
9 260 Active Touch, Inc. 1998 Stock Incentive 301
Plan Stock Grant Agreement; 6 pages
10
261 E-mail string; 7 pages 303
11
262 E-mail string; 3 pages 304
12
263 Photocopies of checks; 37 pages 307
13
264 E-mail; 1 page 315
14
265 E-mail; 1 page 317
15
266 Photocopies of checks; 8 pages 320
16
267 E-mail string; 4 pages 327
17
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183
1 Redwood City, California, Monday, October 18, 2004
2 11:15 a.m. - 5:36 p.m.
3
4 THE VIDEOGRAPHER: Here begins videotape number
5 one in the deposition of Erin Zhu, Volume Two, in the
6 matter of Zeleny versus Zhu, Superior Court of Santa
7 Clara, the case number 1-02-CV 809286. Today's date
8 October 18th, 2004. The time is 11:15 a.m. This
9 deposition is being taken at the Law Offices of Ropers
10 and Majeski, Redwood City, California made at the
11 request of Lael Beloate of the Law Offices of Ropers and
12 Majeski.
13 Would counsel and all present please identify
14 yourselves and state whom you represent.
15 MR. BELOATE: Lael Beloate for the plaintiff.
16 My client, Michael Zeleny, is here today also.
17 MR. BARRETT: James Barrett, attorney for
18 Defendant Erin Zhu present with Erin Zhu.
19 MR. MILLER: William Miller, attorney for
20 Defendant WebEx Communications.
21 MR. CANTAMOUT: Ken Cantamout, private
22 investigator.
23 THE VIDEOGRAPHER: Would the reporter please
24 swear in the witness.
25 //
184
1 ERIN ZHU,
2 having been first duly sworn, was examined and testified
3 as follows:
4
5 EXAMINATION
6 BY MR. BELOATE:
7 Q Good morning, Ms. Zhu.
8 A Morning.
9 Q Continuing the depo that we took at the later
10 part of September, let me run through some of the
11 preliminary admonitions. You've done this a couple
12 times before, so you know how this works. For any -- if
13 my questions are unclear to you or if you believe there
14 is more than one question, please feel free to me to
15 restate it and I will do that for you.
16 A Okay.
17 Q Have you suffered any illness or are you taking
18 any medication that would hinder your ability to
19 understand my questions today?
20 A I don't think so, no.
21 Q Okay. And also to the extent that your counsel
22 objects, you are still required to answer the question
23 unless he directs you not to. Do you understand that?
24 A Okay.
25 Q Okay. So let's just jump right back into where
185
1 we left off. Now, I believe you previous testified that
2 PTYX was a partnership between yourself and Mr. Zeleny;
3 is that correct?
4 A Yes.
5 Q Okay. Do you have a recollection of when that
6 partnership began?
7 A As I said last time, no. My recollection as to
8 a proper starting date is not clear.
9 Q Okay. And what was your role at PTYX?
10 A It varied, but mostly I was responsible for
11 technical matters.
12 Q What type of technical matters?
13 A Programing work, server management, things like
14 that.
15 Q Okay. What resources did PTYX have?
16 MR. BARRETT: objection; broad, ambiguous.
17 THE WITNESS: Can you clarify.
18 BY MR. BELOATE:
19 Q Sure. Did it have -- did PTYX have any
20 computers or any physical assets that you were able to
21 use in the course of your business?
22 A Yes.
23 Q Okay. What kind of assets were those?
24 A I think at the end we had around, I think, half
25 a dozen to up to maybe ten -- less than ten, I think.
186
1 But I'm not sure of that servers.
2 Q Okay.
3 A Some networking equipment for connecting those
4 servers to -- to the internet and some personal
5 computers and related, you know, office type of things.
6 Q What kind of personal computers did you have?
7 A I don't remember. I think I had a Compaq PC.
8 Q Was that a laptop?
9 A No. The Compaq I'm referring to was a desktop
10 machine.
11 Q Okay. Did you also use a laptop?
12 A I also did use a laptop later. When did I get
13 that laptop? I don't think I got a laptop until fairly
14 late in the company -- in the business.
15 Q How did you acquire these six to ten servers
16 and the personal PCs?
17 A The company paid it with company funds.
18 Q Okay. And did you have access to the company
19 funds?
20 A Yes.
21 Q Okay. Where were the company funds held?
22 A In checking -- bank accounts.
23 Q And you were a signatory to that account?
24 A I was a signatory to that of course, yes.
25 Q Okay. Did you ever write any checks out of
187
1 that account?
2 A Yes, I did.
3 Q What type of things did you write checks out
4 for?
5 A I know that all significant purchases had --
6 were assigned by either Michael or by the two of us
7 jointly. The things I signed for were relatively
8 smaller items.
9 Q And was that typically like computer hardware?
10 A No. Computer hardware I was not -- we usually
11 bought them from Fry's. And I was not able to actually
12 sign for those.
13 Q Why is that?
14 A Because we bounced a check there once in my
15 name a long time ago and they no longer took my
16 signature.
17 Q Okay. And you said "at the end" in one of your
18 answers. What were you referring to at the end?
19 A That meant that I wasn't clear if it was in '99
20 or 2000.
21 Q Okay. And in '99 what -- when you say at the
22 end, does that mean when you --
23 A At the end of us actually conducting business,
24 towards the end.
25 Q Okay. So when in your understanding did you
188
1 stop ceasing business together?
2 A Well, I tried to cease business around January
3 of 2000. We did not come to a conclusion as to how to
4 exactly cease that business and so some various
5 things -- because we couldn't get to closure, various
6 things did continue past that even though I don't think
7 either of us terribly wanted it to.
8 Q Okay. Did you ever try to cease business prior
9 to January of 2000?
10 A Yes, but nothing very definitive.
11 Q And when was that if you recall?
12 A I don't.
13 Q Okay.
14 A We had informal conversations.
15 Q Okay. And how did you -- in January of 2000
16 what did you do to try to cease the business?
17 A We tried to get the help of David Affeld to
18 mediate a dissolution of the partnership.
19 Q Okay. Do you have a sense at the end there
20 what the average monthly costs were to keep PTYX up and
21 running?
22 A Not very well, no.
23 Q Okay. Was it more than, say, 5,000 a month?
24 A Yes, I would think so.
25 Q Okay. Was it more than 10,000 a month?
189
1 A Possible, but I don't know for sure.
2 Q Okay. More than 50,000?
3 A A month, no.
4 Q Okay. What was the biggest business expense of
5 PTYX at the time you left?
6 A I don't really know.
7 Q Okay. Now, as you sit here today, is the
8 partnership between yourself and Michael that's been
9 called PTYX, does that still exist?
10 A I have no idea. I'm not clear on the legal
11 status --
12 Q Okay.
13 A -- of what happened.
14 Q In your understanding was there a time when the
15 partnership ended?
16 A Again, I'm unsure of, you know -- I mean, to my
17 mind the partnership has a hard time existing if the two
18 partners have nothing to do with each other. But I
19 don't know the legal or business standing is with that.
20 Q Have you sent any e-mails or made any
21 representations to third parties that you were still a
22 principal at PTYX after January of 2000?
23 A Probably because Michael and I made some
24 attempts at -- at basically improving the financial
25 standing of the business so that, you know, it -- we
190
1 could come to dissolution or at least a way out of the
2 situation and so we did make some attempts together
3 after January of 2000 to -- to do business.
4 Q Okay. Can you give me some examples of what
5 you did to do business after January of 2000?
6 A I think we put together -- well, I remember at
7 least one proposal that we had put together and I think
8 we were trying to speculate on domain names.
9 Q So as a principal of PTYX, was there times when
10 you would put business proposals together?
11 A At Michael's request I remember doing so at
12 least once.
13 Q Okay. And did you ever present any of these
14 business proposals to anyone at Active Touch?
15 A No.
16 Q Okay. How about WebEx?
17 A In 2000, no.
18 Q Okay. How about Stellar Computers?
19 A No.
20 Q Okay. Now, I think your previous testimony you
21 had testified that when you left the only thing you took
22 was the clothes on your back?
23 A Well, that was in December of '99 when I left.
24 But then, as I said, in January, I did go back to L.A.
25 for this attempted mediation. So I probably took some
191
1 other things with me.
2 Q Did you take a computer?
3 A Did I -- I did not take my desktop machine.
4 Q Okay.
5 A That was left in the house and during 2000, the
6 year 2000 and into -- actually 2001, I made a number of
7 trips to Los Angeles and Michael made a number of trips
8 to see me in San Francisco.
9 Q Okay. Did you take -- or did you obtain the
10 laptop you had previously been using at PTYX after
11 December of '99?
12 A Well, that's the thing. I don't remember if
13 the laptop was bought before or after December of '99.
14 So I simply don't remember.
15 Q But it was purchased with PTYX money?
16 A Up until I think July of 2000, all the money
17 that I had any claims to were in PTYX account. So I
18 guess technically, yes. Other considerations, I don't
19 know.
20 Q So were you still drawing monies from the PTYX
21 account up until July 2000?
22 A Well, I had put personal money, a great deal of
23 personal money into the PTYX account. Mostly in --
24 because, as I explained before, I was not able to open a
25 personal bank account of my own.
192
1 Q Okay. How did you obtain personal monies at
2 this time?
3 A Well, some money was borrowed, but most of the
4 money came in the form of a settlement with my parents.
5 Q Okay. And how much money was that?
6 A That was 300,000 minus some legal fees and
7 expenses.
8 Q Did -- was there any other money paid out of
9 that other than legal fees?
10 A There were other monies paid out of that, but I
11 don't have a clear list of that.
12 Q Okay. Now, you indicated that there was
13 personal monies and some of which were borrowed. Who
14 would you have borrowed the money from?
15 A Well, during the time that -- during the time
16 I'm trying to negotiate a settlement with my parents,
17 Michael borrowed on my behalf some money for my living.
18 Q How much?
19 A I don't remember, but I know that that money
20 was paid back once I received the settlement.
21 Q Was it more than 100,000?
22 A No.
23 Q Was it more than 50,000?
24 A I don't think so, but I don't know.
25 Q Okay. So it could have -- it was 50,000 or
193
1 less probably?
2 A Probably.
3 Q Okay. Do you know who he borrowed that money
4 from?
5 A Not completely, no.
6 Q Okay. Would you have any reason to believe
7 that he borrowed it from his parents?
8 MR. BARRETT: objection; calls for
9 speculation.
10 THE WITNESS: I don't know.
11 BY MR. BELOATE:
12 Q Okay. Had Michael ever -- had Michael's
13 parents ever made loans to PTYX, the company, before you
14 left in '99?
15 A Yes, it had.
16 Q Okay. And how would that typically come
17 about?
18 A I don't know. Michael would be the one
19 responsible for communicating with him.
20 Q And how did you -- how did you come to know
21 that his parents were making loans to PTYX?
22 A A check would be -- a check would come
23 through.
24 Q Okay. Did your parents ever make loans to
25 PTYX?
194
1 A I don't know if -- I think so. I don't know if
2 they made loans to PTYX. I know for sure they made
3 loans to Live Share.
4 Q How much money did they loan to Live Share?
5 A I don't have -- I don't have a figure right
6 now.
7 Q Okay. More than 100,000?
8 A I don't know.
9 Q Okay. So you don't even know if it's in the
10 ballpark?
11 A No, I don't know.
12 Q Okay.
13 A And I have no paperwork from that time.
14 Q Would you think they gave a loan to Live Share
15 more than, say, $10,000?
16 A Yes.
17 Q More than 20,000?
18 A I believe so.
19 Q More than 50?
20 A I don't know.
21 Q Okay. So between December -- when did you
22 receive the settlement, the $300,000?
23 A I think half of it in April and half of it a
24 couple months later.
25 Q Okay. And that was in 2000; is that right?
195
1 A Yes.
2 Q Okay. Between December 1999 and April 2000,
3 did you have any monies coming in to you?
4 A Clarify that, please.
5 Q Were you -- did you have any money to live on
6 between December of 1999 and April of 2000?
7 A Yes, I had some money.
8 Q Okay. And that would be referring to the money
9 that Michael had borrowed on your behalf?
10 A No. That was later.
11 Q That was after April?
12 A No, not April. That was -- that was after I
13 had left.
14 Q Okay.
15 A So I mean, we -- well, at the time since things
16 were not sorted out as to the fate of PTYX and Live
17 Share, we still both had, I think, access through the
18 company.
19 Q Okay. Now, during the existence of PTYX, had
20 you been drawing a salary?
21 A During some of the time.
22 Q Okay. At what time were you not drawing a
23 salary?
24 A I think when we started we were not, but I'm
25 not clear really.
196
1 Q Okay. When you left in December of 1999, were
2 you still taking money from PTYX as a salary after that
3 time?
4 A I don't know how we were considering it.
5 Q Okay. How did you typically -- the salary that
6 you were paid, I thought you testified it was 2000,
7 $2500 a month. Does that seem correct?
8 A I think so.
9 Q Okay. How did you typically get that money?
10 A It would be in the form of a check to cash.
11 Q Okay. And who would of wrote -- who would
12 write that?
13 A I think usually Michael.
14 Q Okay. When you left in December of 1999, did
15 you have a checkbook for the PTYX account?
16 A I think we both had pages of checks.
17 Q Okay. Now, I think we looked at some documents
18 last time and at some point in time you were using a
19 PTYX e-mail address. Do you know what I mean by that?
20 A Yes.
21 Q Okay. Do you recall when you first started
22 using that e-mail?
23 A No, but I think we started using that before
24 PTYX was registered.
25 Q Okay. When did you stop using that e-mail?
197
1 A I don't remember.
2 Q Okay. Did you stop using it when you left in
3 December of 1999?
4 A No.
5 Q Okay. Did you continue using it more than a
6 year?
7 A I don't think so, but I'm not sure.
8 Q Okay. And the e-mails that people would send
9 you to your PTYX account, where were those maintained,
10 those e-mails?
11 A On the server at -- at Michael's house.
12 Q Okay. And so you still had the ability to
13 check in and see your e-mail?
14 A For a while, yes.
15 Q Okay. Was there a time where you were no
16 longer able to access that account?
17 A I would guess so. I mean, I might -- I
18 maintained and still maintain a number of e-mail
19 accounts and I don't always remember when I stopped
20 using one or the other.
21 Q Okay.
22 A But since we still had businesslike e-mails
23 during 2000, I would assume that I did use the PTYX
24 e-mail address for that. But, again, I don't remember
25 clearly.
198
1 Q Was there ever a time where Michael blocked
2 your access to that e-mail account?
3 A I don't remember.
4 Q Okay. Did you -- you considered yourself --
5 did you consider yourself a principal of PTYX?
6 A At what time?
7 Q Let's say, the '99 period.
8 A Yes.
9 Q Did you understand you had certain
10 responsibilities based on that representation?
11 A I guess so.
12 Q Okay. Did you ever review the tax documents
13 for that partnership?
14 A No, I didn't.
15 Q And why is that?
16 A Because, first of all, I was not familiar
17 with -- with the corporate paperwork, the financial
18 paperwork. And, second of all, because our tax
19 accountant is -- is a Russian -- I don't know, friend of
20 Michael's family or something. I'm not -- I'm not too
21 clear, but she was -- in any case, it was more
22 convenient for Michael to deal with her.
23 Q Okay. And did Michael ever prevent you from
24 reviewing those types of documents?
25 A No.
199
1 Q Okay. How -- during the years you were
2 associated with PTYX, how often did the person you just
3 referred to help or do the taxes for that partnership?
4 A I don't know. I only went to her office when
5 something needed to be signed.
6 Q Okay. And did you read what had to be signed?
7 A I suppose so.
8 Q Okay. Do you recall what that was?
9 A I recall some things about late filings and
10 things like that, but I -- I don't have no specific
11 memory.
12 Q Okay. Was there any other time that you signed
13 documents on behalf of PTYX?
14 A But I don't remember specific incidents.
15 Q Okay. For the year 1999, as you sit here
16 today, do you believe that you had a partnership with
17 Michael named PTYX?
18 MR. BARRETT: objection; calls for a legal
19 conclusion.
20 You can answer the question.
21 THE WITNESS: I think I did.
22 BY MR. BELOATE:
23 Q Okay. Did you do any other -- did you do work
24 outside of that partnership in 1999?
25 A Yes, I did.
200
1 Q Okay. And what type of work did you do?
2 A Consulting work.
3 Q When you say consulting, what does that mean?
4 A That means anything from -- well, advising
5 people based on my knowledge.
6 Q Okay. Did you -- did you do any tasks during
7 your consulting work that you also did for PTYX?
8 MR. BARRETT: objection; vague and ambiguous.
9 BY MR. BELOATE:
10 Q Okay. Did you -- when maintained the PTYX
11 servers in 1999?
12 A I did usually.
13 Q Okay. While you were working with PTYX, did
14 anybody else maintain those servers?
15 A I don't know if it was '99, but I think Nick
16 may have helped.
17 Q Okay. And I don't think I asked you this
18 question up above when I was asking you about PTYX's
19 assets. But did they have -- did PTYX at some point
20 have employees?
21 A Yes.
22 Q Okay. And did you hire any of those employees?
23 A I hired one.
24 Q And what was their name?
25 A Josh Gambin.
201
1 Q And what did he do?
2 A He was my assistant.
3 Q And what duties did that entail?
4 A Just various tasks that I was too busy for.
5 Q Okay. What was his background?
6 A I'm not too sure, really.
7 Q Okay. Did he have to have any certain
8 qualifications for you to hire him?
9 A He was willing to work and he was cheap.
10 Q Okay. Did you hire anybody else?
11 A I did not personally -- I mean, individually
12 hire anybody else.
13 Q Okay. Were you consulted about the hiring of
14 another employee for PTYX that you approved?
15 A Yes, I was.
16 Q And who was that?
17 A Well, I think there was a graphic designer
18 whose name I've forgotten that didn't work out very
19 quickly.
20 Q Anyone else?
21 A There was a salesperson that Michael was
22 primarily responsible for hiring that also didn't work
23 out, not quite as quickly, but relatively quickly.
24 Q Okay. Anyone else?
25 A I think these were the only people that were --
202
1 that we offered employment to. There were other people
2 that worked as contractors occasionally.
3 Q Now, how did you distinguish the work that you
4 would be claiming under your individual capacity as
5 consulting versus the work that was done under the
6 partnership PTYX?
7 A Depends on -- depended on how much it had to do
8 with -- well, depends on how -- depends on whether
9 anything other than myself -- not any -- business
10 whether I represented it as a company, depends on how, I
11 guess, I was contacted -- contacted that individual or
12 business.
13 Q So you were never contacted under the name PTYX
14 that led you to do individual consulting?
15 A No.
16 Q Okay. And when you were -- when someone asked
17 you to do some independent consulting, did you ever
18 discuss it with Michael before taking on a job or did
19 you just do it?
20 MR. BARRETT: objection; vague and ambiguous.
21 THE WITNESS: I would say usually not, but --
22 BY MR. BELOATE:
23 Q Okay. When did you ever consult Michael before
24 taking on a consulting job?
25 A I don't know.
203
1 Q Okay.
2 A I mean, we lived in the same house. We saw
3 each other all the time. So a lot of things got talked
4 about.
5 Q Okay. And when you were doing these
6 independent consulting jobs, were you still drawing a
7 salary from PTYX?
8 A Yes.
9 Q Okay. About how much money do you think you
10 generated doing this independent consulting work in
11 '99?
12 A Not much. And, actually, because I had no
13 personal account, whatever money ended up in the PTYX
14 account anyway.
15 Q Okay. But you didn't -- you didn't have the
16 understanding that it was PTYX's money, it was your
17 money you had earned individually?
18 A I don't think in '99 that there was any
19 significant -- any significant sum of that sort to my
20 understanding.
21 Q Okay. Was it more than $1,000?
22 A Possibly.
23 Q More than $10,000?
24 A I don't know.
25 Q Okay. Was it more than 100,000?
204
1 A No.
2 Q Okay. How about 20,000?
3 A I don't know.
4 Q Okay. So it could have been, though?
5 A It's --
6 MR. BARRETT: objection; asked and answered.
7 BY MR. BELOATE:
8 Q Okay. You don't know?
9 A I don't know.
10 Q Okay. In '98 did you do any independent
11 consulting?
12 A Look, it's -- it's a little bit -- it's really
13 more of a matter of mental categorization than any
14 practical implications. Because, as I said even, if I
15 thought something was independent consulting, the money
16 still went into the same place. And Michael had the
17 same access to it. What I mostly wanted to say about
18 that was that I did not consider work for PTYX to
19 encompass everything I could possibly do and that -- you
20 know, that there were things I could do that I was
21 allowed to do outside of the contacts of the
22 partnership.
23 Q Okay. And by allowed, who made the decision
24 you were allowed to?
25 A Michael.
205
1 Q Michael made the decision that there were
2 certain consulting jobs you were allowed to do?
3 A No. He did not want to allow me to do any of
4 those things. He disapproved of that. And he tried to
5 convince me that anything I did had to be part of the
6 partnership. And I disagreed with that.
7 Q Okay. But at the end of the day, the monies
8 all went into the PTYX account?
9 A All went into the PTYX account as I had no
10 other account.
11 Q Okay. Now, last time -- I want to just give
12 you one more admonition. If it's running long and you
13 need to take a break, go ahead and ask me and we can do
14 that. The only thing I ask is that you finish the
15 question that's being posed. Do you understand that?
16 A Yes.
17 Q Do you need a break?
18 A No.
19 Q Okay. We will keep going, then. All right.
20 Did you have an understanding that -- you made
21 mention that there was monies from settlement. Did any
22 of the monies from settlement, were those given or do
23 you have knowledge that any of those monies were given
24 to Michael's parents in repayment of a loan?
25 A I believe so.
206
1 Q Okay. Do you know how much?
2 A No, I don't.
3 Q Okay. Do you have a -- was it more than
4 10,000?
5 A I think so.
6 Q More than 100,000?
7 A No, I don't.
8 Q Okay. Did you ever agree to pay back any of
9 the monies that were loaned on behalf of the partnership
10 for Michael's parents?
11 MR. BARRETT: objection; vague and ambiguous.
12 Do we have a time line we are talking about?
13 MR. BELOATE: Sure. 1999.
14 MR. BARRETT: No. I'm talking about what loans
15 are you talking about?
16 MR. BELOATE: Loans that were given in 1999.
17 MR. BARRETT: Okay.
18 THE WITNESS: Yes, there were things. There
19 was money lent to PTYX from Michael's parents and yes,
20 there was an understanding that money for the
21 business -- well, no -- loans for the business were to
22 be returned.
23 BY MR. BELOATE:
24 Q And did you have occasion to ever see any of
25 the checks that Michael's parents wrote?
207
1 A Probably yes.
2 Q Okay. Were any of the checks ever written
3 specifically to PTYX or were they all written to
4 Michael?
5 A I think some were -- I think the loans for the
6 company were written to company names.
7 Q Okay. If it was for personal money, it would
8 have probably been written to Michael?
9 A I would think so.
10 Q Okay. Did your parents ever make loans to PTYX
11 during '99?
12 A As I said, I don't remember if they loaned it
13 to PTYX. I think they wrote -- I think they loaned it
14 to Live Share.
15 Q Okay. And this was a loan?
16 A Yes.
17 Q Okay. How much did they loan Live Share?
18 A I don't remember.
19 Q And so the check they wrote, was that to Live
20 Share or to you individually?
21 A To Live Share.
22 Q Okay. And have you brought any documents with
23 you today?
24 A I have not.
25 Q Okay. Would it be fair to say -- I'm trying to
208
1 summarize this from your previous testimony and today --
2 that you handled the technical aspects of PTYX and
3 Michael handled the financial aspects of PTYX?
4 A Yes. And we shared some of the other tasks.
5 Q Okay. What were some of the other tasks?
6 A Trying to get customers, dealing with them.
7 Q Who typically -- or was there a person who
8 typically dealt with interfacing customers directly?
9 A That shifted during the time.
10 Q Okay.
11 A I think I -- I think I -- well, I did a fair
12 amount of that in the beginning. And I think Michael
13 took on more of that later.
14 Q Okay. And why is that?
15 A I don't know.
16 Q Okay. And when you say later, when did you
17 mean? What time frame are you talking about?
18 A '99.
19 Q Okay. How about after '99?
20 A After '99 we were on a very sort of tricky
21 footing.
22 Q Okay.
23 A I mean, I -- I didn't know what really the
24 status of the company was. I did not want to work with
25 Michael, but he insisted that I was still liable because
209
1 we hadn't dissolved the partnership. And so it was --
2 you know, it was mostly Michael trying to talk me into
3 various projects.
4 Q Okay. Now, do you recall seeing -- do you
5 remember having your deposition taken in the case
6 against -- where Michael's father was suing you?
7 A You mean the one about a year ago?
8 Q Yes.
9 A I recall generally, yes.
10 Q Okay. Do you recall seeing checks that were
11 given to you during that period of time?
12 A Checks given to me from whom?
13 Q They weren't given to you, but they were
14 associated with, for example, PTYX. Like we've
15 discussed this morning.
16 A I don't -- I mean, I have -- I know I have seen
17 some copies of checks.
18 Q Okay.
19 A But I don't specifically remember if it was at
20 the time of that deposition.
21 Q That's fine. I don't want you to guess.
22 Okay.
23 A I went over things with my lawyer.
24 Q And I don't want to know about that either.
25 A Okay.
210
1 Q So would it be fair to say that you were the
2 person who tried to terminate the PTYX partnership?
3 A December of '99 and January of 2000, yes.
4 Q Okay. And I think we discussed previously at
5 your other deposition prior to this one that part of the
6 reason for that was that you and Michael were having
7 a -- weren't having a productive working relationship.
8 A Correct.
9 Q Were there any other factors as to why you
10 wanted to terminate the PTYX partnership?
11 A We were not -- well, the whole situation of,
12 you know, us sharing a house. I mean, the whole
13 personal situation was not conducive either. The whole
14 situation was not working out as far as I was
15 concerned.
16 Q Okay. And in December of '99 you were sharing
17 a house with Michael?
18 A Yes.
19 Q Now, isn't it true that when you moved into the
20 house, prior to that you had moved in with your
21 boyfriend?
22 A Yes.
23 Q Okay. And then your boyfriend came to leave?
24 A I broke up with my boyfriend and I did not want
25 to live with him anymore.
211
1 Q Okay. And when did he move out?
2 MR. BARRETT: objection; relevance.
3 THE WITNESS: I think late summer. I'm not
4 sure.
5 BY MR. BELOATE:
6 Q Okay. But when you initially moved in with
7 Michael, it wasn't to live with Michael, it was -- for
8 living arrangements because you were living with your
9 boyfriend?
10 A When I say live with Michael, I mean shared a
11 house together.
12 Q Okay. Thank you.
13 Did you ever obtain any shares in Active
14 Touch?
15 A Yes, I did.
16 Q Okay. When did you obtain those shares?
17 A Can you clarify what it means by obtained.
18 Q You were given a stock certificate.
19 A I was given a stock certificate in 2001.
20 Q Okay. And that was for Active Touch shares?
21 A It was for WebEx shares because the company had
22 changed the names.
23 Q Okay. And do you know when those were issued?
24 A No.
25 Q Okay. And the shares that you obtained, the
212
1 WebEx shares, what was that for?
2 A That was for some independent consulting work I
3 performed for Active Touch.
4 Q And when did you do that?
5 A I think the e-mails pertaining to that with the
6 dates, but -- '98 or '99.
7 Q Okay. Do you recall what type of work it was
8 that you did that generated those shares?
9 A I did some market research and wrote -- wrote a
10 proposal based on that.
11 Q Okay. And what was the proposal on? What was
12 the subject of that?
13 A It was for -- I think it was for the viability
14 and features of a consumer service based on Active
15 Share's technology -- I mean, Active Touch's
16 technology.
17 Q This market proposal, you wrote this completely
18 on your own?
19 A Yes.
20 Q Okay. Did it reference any other companies to
21 compare it to?
22 A Probably.
23 Q What companies?
24 A I don't remember.
25 Q Okay. In 1999 were you ever employed other
213
1 than your work with PTYX? ?
2 MR. BARRETT: I'm going to object because the
3 client -- Ms. Zhu already represented she wasn't sure of
4 the years on the Active Touch consulting work. And you
5 had asked -- it was asked and answered before regarding
6 her outside consulting.
7 MR. BELOATE: Right.
8 MR. BARRETT: So you can answer if you know the
9 answer.
10 THE WITNESS: I was -- I was working for a
11 company called People link for a while.
12 BY MR. BELOATE:
13 Q Okay.
14 A But I was --
15 Q How long did you work there?
16 A I was not, however, considered an employee
17 because Michael persuaded me to structure that as a 1099
18 consulting situation where basically PTYX was consulting
19 for People link and sending me to work there.
20 Q Okay. So your work with People link was under
21 the auspices of the PTYX partnership?
22 A Yes.
23 Q Okay. And the market research proposal that
24 you've been referring to, did that have anything to do
25 with People link?
214
1 A I may have referred to People link --
2 Q Okay.
3 A -- as I was talking about communication. And
4 that's one of the things People link did.
5 Q Okay.
6 A But I don't remember exactly.
7 Q How long did you work there?
8 A A few months.
9 Q All right. And did you learn anything while
10 working there that you hadn't known prior to working
11 there?
12 A Can you be more specific.
13 Q Sure. What type of customers did People link
14 have?
15 MR. BARRETT: objection; vague and ambiguous.
16 THE WITNESS: Do you mean by customers people
17 who pay money or --
18 BY MR. BELOATE:
19 Q Correct.
20 A People who paid money at the time, I don't
21 know --
22 Q Okay.
23 A -- actually if they had any paying customers.
24 Q Okay. And is that because they were a free
25 e-mail service?
215
1 A No, they were not.
2 Q Okay. Were they a free service?
3 A They were at the time of -- they were a free
4 service. And they also did custom versions of their
5 service for other websites, but I do not know if they
6 were paid for that.
7 Q Okay. What was their service?
8 A It was in instant messaging.
9 Q Did you ever consider using the Active Touch
10 services with the instant messaging aspect of the People
11 link services?
12 A Did I ever consider? Maybe.
13 Q Okay. Do you have an understanding of what the
14 Active Touch service was in 1999?
15 A I think so. Although, it was probably
16 influenced by what it is now.
17 Q Okay. So you've testified that you obtained
18 shares in WebEx in 2001?
19 A I think so, yes.
20 Q Okay. How many shares was that?
21 A Five thousand.
22 Q Did you obtain any other shares in 2001 of
23 WebEx?
24 A I don't think so.
25 Q Okay. Did you obtain any WebEx shares in 2002?
216
1 A I'm not sure.
2 Q Okay. So you may have? You don't recall?
3 A Some shares were transferred into my account,
4 but I didn't actually realize this until somewhat later.
5 Q Okay. And that was in 2002?
6 A That's why I don't know if it was in 2002.
7 Q I see.
8 A I didn't actually find out that it was there
9 until after 2002.
10 Q And how many shares was that?
11 A That was 10,000.
12 Q All right. So it could have been 2002, 2003 or
13 could it have been earlier than 2002?
14 A It was -- I'm pretty sure it was not earlier
15 than 2002.
16 Q Okay. And who transferred those shares into
17 your account?
18 A The 10,000 shares?
19 Q Correct.
20 A I believe my parents or somebody acting for
21 them.
22 Q Okay. Did you have an understanding how your
23 parents obtained those shares?
24 MR. BARRETT: objection; calls for
25 speculation.
217
1 THE WITNESS: I knew that they had shares.
2 BY MR. BELOATE:
3 Q Okay. Did you have an understanding that these
4 were your parents shares that they were sending to you?
5 A Eventually I think it was in 2003 I became
6 aware that my parents made me a gift of 10,000 shares.
7 And then after -- after some checking of paperwork, we
8 eventually found out where those 10,000 shares ended
9 up.
10 Q But this was in no way compensation for work
11 you had done for WebEx?
12 A No. This was a gift.
13 Q Okay. Then did you obtain any shares of WebEx
14 in 2003 or 2004 other than the ones that we have just
15 been discussing?
16 A I did -- well, I have done some very small,
17 like, 1,000 shares at a time kind of speculation on
18 WebEx shares. But I don't know if you consider that
19 obtaining.
20 Q You purchased them and sold them?
21 A I purchased them and sold them, but only in
22 very small quantities.
23 Q Okay. When did you -- or did you sell the
24 5,000 shares that you were given in 2001?
25 A Yes, I did.
218
1 Q Okay. Do you recall what you sold them for?
2 A No, I don't have an exact figure. But I could
3 come up with that.
4 Q Okay. Did you sell the 10,000 shares?
5 A Yes, I did.
6 Q And do you recall what you sold those for?
7 A Not exactly. Again, I can -- I can get the
8 accounting.
9 Q Okay. Do you have a sense of what the shares
10 were selling for at the time you sold them?
11 A The 5,000?
12 Q Yes.
13 A Yeah, I do. It was slightly less than $10.
14 Q Okay. And how about the 10,000?
15 A I didn't -- I didn't sell them in one group.
16 Q Okay. How many did you sell first?
17 A Pardon?
18 Q How many did you sell the first time?
19 A I don't know. Again, I can come up with the
20 records.
21 Q Okay. Are you employed currently?
22 A Yes, I am.
23 Q And who do you work for?
24 A A company called Spring Touch.
25 Q What do you do there?
219
1 A Project management.
2 Q Where are they located?
3 A Sunnyvale.
4 Q Okay. And are you an employee or a
5 consultant?
6 A I am an employee.
7 Q Okay. And how long have you worked there?
8 A About a year.
9 Q Okay. And I'm not sure, but I thought you
10 testified at your previous deposition that you live in
11 Germany; is that correct?
12 A I live in Germany part of the time.
13 Q Okay. Where are you most -- well -- strike
14 that.
15 Have you been to Germany since your last
16 deposition?
17 A Yes.
18 Q Okay. So July 2000 you obtained a settlement
19 of 300,000. In 2002/2003 you obtained 10,000 shares of
20 the WebEx stock. Have your parents contributed any
21 other monies to you since you left PTYX?
22 A Yes, they have.
23 Q And what have they contributed to you?
24 A I don't have the exact sums.
25 Q Have they done it in terms of actual cash or
220
1 have they done it in shares?
2 A Cash.
3 Q And was it more than 100,000?
4 A Could be.
5 Q Okay. And was this all gifted to you?
6 A We didn't really discuss that.
7 Q Okay. So it could be a loan?
8 A Could be.
9 Q Okay. Have your parents ever loaned you money
10 in the past on an individual basis?
11 A Yes.
12 Q They have. And when was that?
13 A I can't really give any -- I can't give any
14 specific dates.
15 Q Okay. Did they ever personally loan you any
16 money in the year 1999?
17 MR. BARRETT: objection; asked and answered.
18 THE WITNESS: I think they did.
19 BY MR. BELOATE:
20 Q Okay. And how much?
21 A I don't know.
22 MR. BARRETT: objection; asked and answered.
23 BY MR. BELOATE:
24 Q What's that?
25 A I don't know.
221
1 Q Okay. And was that loan given to you in your
2 individual capacity or on behalf of --
3 MR. BARRETT: objection; asked and answered.
4 BY MR. BELOATE:
5 Q -- PTYX and Live Share?
6 A They were loans to me personally.
7 Q Okay. And there were loans also to Live Share;
8 is that correct?
9 A Yes.
10 Q Okay. Did they ever make any loans to PTYX?
11 A I don't know.
12 Q Okay. Now, the additional cash that your
13 parents have given you in this recent time frame, has
14 this all been cash or have their been trusts set up?
15 MR. BARRETT: objection; lack of foundation.
16 THE WITNESS: I --
17 MR. BARRETT: Why don't you -- would you like
18 for him to rephrase the question.
19 BY MR. BELOATE:
20 Q Has any of the money your parents given you,
21 has it been in the form of a trust?
22 A I have only received cash to this date.
23 Q And in July 2000 when you reached the
24 settlement and got $300,000, did you put that in a
25 bank?
222
1 A Yes.
2 Q Okay. And what account did you put that in?
3 A Into a money market account under the name of
4 PTYX at Bank of America.
5 Q Okay. And you had access to that money?
6 A Yes.
7 Q Okay.
8 A And so did Michael.
9 Q Okay. Do you believe Michael spent any of your
10 money?
11 A That calls for -- it's -- too complicated.
12 MR. BARRETT: Okay. objection; calls for
13 speculation. Only if you have any direct knowledge of
14 expenditures do you answer the -- you know, can you
15 answer if you can answer.
16 BY MR. BELOATE:
17 Q Have you heard of a company called
18 Trespass.net?
19 A Not a company, no.
20 Q What would you call it?
21 A A website.
22 Q Okay. Let's call it that. You've heard of
23 that website?
24 A Yes.
25 Q Did you have any association with that website?
223
1 A Yes.
2 Q What was your association?
3 A I started it and I was running it for a little
4 while.
5 Q Okay. And what is it?
6 A It was an incentivized e-mail service.
7 Q Did it ever generate revenues?
8 A Yes, it did.
9 Q Do you have a sense of how much revenue it
10 generated?
11 A Not at the moment. I think it only generated
12 revenue for about two or three months and --
13 Q Okay. When was that website set up?
14 A It was set up, I think, right before Labor Day
15 weekend of 1999.
16 Q Okay. And was it still up and running when you
17 left PTYX?
18 A The service was not fully functional when I
19 left.
20 Q What was not functional about it?
21 A The site had grown too fast and it just
22 basically had crashed the hard drives and clogged up the
23 computers and so forth.
24 Q Okay. Now, if you had gotten larger computers,
25 would that have fixed the problem?
224
1 MR. BARRETT: objection; calls for
2 speculation.
3 THE WITNESS: No. Because the -- it was not
4 designed to be a fully functional system. I had set it
5 up as a -- as a prototype
6 BY MR. BELOATE:
7 Q Okay. Did you have plans to make it a fully
8 functional system?
9 A You would have to be more clear about what
10 plans means.
11 Q Okay.
12 A I mean, when I build a prototype, there's
13 always the thought that it could --
14 Q Right. Once it started generating revenues,
15 was there ever a discussion between you and Michael as
16 to actually getting it so that it would work?
17 A Yes, there were discussions.
18 Q Okay. Did Michael have the ability to -- to do
19 that on his own?
20 MR. BARRETT: objection; calls for
21 speculation.
22 THE WITNESS: Ability, I would like to think
23 so, but -- I mean --
24 MR. BELOATE: All right.
25 MR. BARRETT: I think it might be a reasonable
225
1 time to take a break.
2 MR. BELOATE: Let's do that.
3 THE VIDEOGRAPHER: Off the record. The time is
4 12:14.
5 (Lunch recess.)
6 THE VIDEOGRAPHER: Back on the record. The
7 time is 1:34.
8 BY MR. BELOATE:
9 Q Welcome back, Ms. Zhu. Let's see here. You
10 understand you are still under oath?
11 A Yes.
12 Q Okay. Did you ever have any discussions with
13 Michael where you indicated to him that if he had an
14 issue with the Live Share deal that he could sue your
15 parents?
16 A No.
17 Q Okay. Is that something you might say just in
18 joking?
19 A Not what you said, no.
20 Q Okay. What might you have said in joking?
21 MR. BARRETT: objection; calls for
22 speculation.
23 BY MR. BELOATE:
24 Q Okay. Did you ever work for Stellar
25 Computing?
226
1 A Not as an employee.
2 Q Okay. What was your capacity?
3 A Hard to say. I mean, it -- I may have helped
4 them out at the very beginning.
5 Q Okay. Were you given business cards?
6 A I remember seeing some business cards, yes.
7 Q Okay. Did you have an e-mail address through
8 that company?
9 A It's possible if there were business cards.
10 Q Okay. Did you have an e-mail address through
11 the Active Touch company?
12 A I don't think so, but I'm not sure.
13 Q Okay. And your work for them, was that done in
14 an independent consultant capacity?
15 A For Active Touch?
16 Q No. For Stellar Computers. I apologize.
17 A I don't recall any compensated work really for
18 Stellar Computing.
19 Q Okay. All right. Who came up with the name
20 Live Share?
21 A I'm not sure.
22 Q Okay. Was that a name that somebody at Active
23 Touch came up with or was that a name that came out of
24 the PTYX partnership?
25 A I -- I would have to guess.
227
1 Q Okay. And I don't want you to guess.
2 Now, you mentioned earlier this morning that
3 you did a market research proposal at the beginning of
4 '99 for Active Touch. Do you recall that proposal?
5 A Very roughly.
6 Q Okay. Was that under the Live Share concept?
7 A No, not exactly.
8 Q Okay.
9 A Live Share -- well, there were elements of that
10 that were included in the original sort of proposal for
11 Live Share and then the idea of what Live Share was
12 going to do evolved over time. So they were all
13 connected, but I wouldn't say they were the same.
14 Q Okay. How did they evolve over time?
15 A By trying to see where an actual market might
16 be.
17 Q Okay. And what did you do to do that?
18 A Look at what others were doing, talk to people,
19 that sort of thing.
20 Q And when you are referring to others, who did
21 you look at?
22 A Online companies.
23 Q Okay. Was there any company in specific that
24 was being brought up in that business plan?
25 A I think specific sites were mentioned. I don't
228
1 have an exact.
2 Q Okay. Who did you discuss with -- at WebEx,
3 who did you have the discussions about Live Share with?
4 A I talked to several people.
5 Q Okay.
6 A Mostly --
7 Q And who were --
8 A Mostly -- well, on the business side the
9 discussions were primarily with Subrah and some of the
10 people that he directed me to. And on the technical
11 side, I communicated first with my father and then some
12 people in the engineering team.
13 Q Okay. Did you ever deal with Thomas Colby?
14 A Very briefly, yes.
15 Q Okay. And why very briefly?
16 A Because I think he was -- we were initially
17 talking about Active Touch or -- well, I don't know when
18 they changed their name, but Active Touch or WebEx
19 making investments into Live Share and the structuring
20 of that was something Tom -- Tom Colby was involved in.
21 Q So Tom Colby was involved in the aspect where
22 there would be an initial investment by Active Touch
23 into Live Share?
24 A Yes.
25 Q Okay. And who was Live Share?
229
1 A Live Share, I think, was incorporated with
2 myself, Michael, and a certain amount of stock set aside
3 in anticipation -- set aside for WebEx, Active Touch in
4 anticipation of this investment, et cetera.
5 Q When was it incorporated?
6 A I don't know exactly. I would guess '99.
7 Q Okay. And you left in December of '99; is that
8 right?
9 A Yes, I did.
10 Q Okay. And at that time trespass.net was still
11 up and running in December of '99; is that right?
12 A I answered that earlier. And I said that it
13 was not really functional, but I don't remember if there
14 was an actual website up.
15 Q Okay. Do you have knowledge as to whether or
16 not it was generating revenue in December of '99?
17 A I don't recall.
18 Q Okay. Are you aware of the fact that there was
19 an investor who was willing to inject money into that
20 company?
21 MR. BARRETT: objection; calls for
22 speculation.
23 You can answer if you know.
24 THE WITNESS: There was talk of -- there was
25 talk of investment.
230
1 BY MR. BELOATE:
2 Q And was that by the name of -- a gentleman by
3 the name of Josh?
4 A Josh Kramlinger?
5 Q Uh-huh.
6 A I believe there were conversations with him.
7 More than that, I can't really say.
8 Q Okay. Are you aware that there was a deposit
9 made in January of 2000?
10 A No, not really.
11 Q Okay. Are you aware -- do you know what the
12 dollar amount that was discussed between PTYX and Josh
13 was?
14 MR. BARRETT: objection; calls for
15 speculation.
16 THE WITNESS: No. I just knew that he had -- I
17 just knew that he had some money.
18 BY MR. BELOATE:
19 Q Okay. So $350,000 was not a number that you
20 recall knowing about Josh would be investing for
21 trespass.net?
22 MR. BARRETT: objection; asked and answered.
23 THE WITNESS: What?
24 MR. BARRETT: You can -- you have already
25 answered that you didn't know.
231
1 THE WITNESS: Right.
2 BY MR. BELOATE:
3 Q You didn't know? You had never heard that
4 dollar amount with reference to this discussion?
5 A I have heard the dollar amount.
6 Q You have heard the dollar amount?
7 A Correct.
8 Q Okay. And how did you hear it?
9 A Through Michael.
10 Q Okay. And when did Michael tell you?
11 A I would guess in 2000.
12 Q Okay. And why did he tell you?
13 A Because he was trying to keep the business
14 going.
15 Q Okay. And would $350,000 would that have
16 helped trespass.net become more than just a prototype?
17 MR. BARRETT: objection; calls for
18 speculation.
19 THE WITNESS: There were -- it was not quite as
20 straightforward as that, I believe
21 BY MR. BELOATE:
22 Q Okay. Why is that?
23 A I don't remember the specifics at the moment.
24 Q Okay. What would you have had to do to get it
25 from a prototype to a working model?
232
1 A More development than I was capable of,
2 really.
3 Q Okay. So that was beyond your experience and
4 expertise?
5 A Yes.
6 Q Okay. Did you -- do you recall ever sending
7 your father an e-mail where you communicated to him that
8 you would be able to use the trespass.net users and
9 convert them to Active Touch customers?
10 A It's possible.
11 Q Okay. Did you ever think about doing that?
12 A Not very seriously because the users themselves
13 are too different. I was, however, hoping for side
14 benefits, more of an advertising or a traffic
15 aggregating rather than user-to-user conversion.
16 Q Okay. Have you ever seen an Active Touch
17 revenue sharing distribution agreement?
18 A I would guess so, yes.
19 Q Okay. And does part of that agreement have to
20 do with advertising?
21 A I don't know.
22 Q Okay. Was advertising a term that was ever
23 negotiated between yourself and Active Touch in using
24 their services?
25 A Can you clarify that. Advertising as in?
233
1 Q Sure. Like advertising revenue generated by
2 using their service and your website?
3 A I believe that they wanted a paying service,
4 but I'm not clear on this.
5 Q Okay. You -- you indicated you had discussions
6 with people at Active Touch regarding Live Share. When
7 did those discussions first take place?
8 A I don't know exactly without something concrete
9 in front of me.
10 Q Okay. Do you recall if it happened in '99
11 before you left?
12 A Yes.
13 Q Okay. Was it a year before you left? Months
14 before you left?
15 A Within the year I would think.
16 Q Okay. And do you recall who your initial
17 conversations were with?
18 A It should have been with Subrah after
19 introduction from my father.
20 Q Okay. And that would have been the first time
21 you had met him?
22 A No.
23 Q You had met him before?
24 A Yes.
25 Q Okay. And can you describe your first meeting
234
1 with Subrah?
2 A I wouldn't remember.
3 Q Why is that?
4 A He was my father's business partner. So I
5 could have run into him either -- you know, any number
6 of times while I was visiting my family.
7 Q Okay. But your first formal introduction was
8 relating to Live Share?
9 A No. It was probably relating to my independent
10 consulting work for them before that.
11 Q Okay. And by that you are referring to which
12 consulting work?
13 A The consulting work for which -- for which I
14 billed for $10,000, half of it in cash and half of it in
15 shares.
16 Q Okay. All right. And you talked -- did you
17 talk to your father about the Live Share conception
18 prior to talking to Subrah?
19 A I talked to my father about the vague idea of
20 using their technology for the consumer market.
21 Q Uh-huh.
22 A And my father told me to discuss that with
23 Subrah.
24 Q Okay. And after that initial discussion, how
25 long was it before Live Share -- the Live Share concept
235
1 was used?
2 A Again, you are referring to Live Share concept
3 as though it's one clear thing.
4 Q Right. That's my point. It sounds like there
5 was a conceptual idea.
6 A There was a vague idea that they had developed
7 this technology and they were applying it for business
8 purposes, as they do today.
9 Q Right.
10 A And I wanted to see if I could help take that
11 for the consumer market. And so there was this very
12 general idea that I wanted to make use of somehow and --
13 but calling all of that, you know, into something as
14 concrete as the Live Share concept is a little -- it's a
15 little vague.
16 Q Absolutely. So let's clear this up. Initially
17 you had a conception as to this business idea. How long
18 was it from the initial discussions of this concept was
19 it until you actually started using the term Live Share
20 as a name for a company or a concept?
21 A Several months, I would guess.
22 Q Okay. Have you heard the name Colin Morris?
23 A Yes.
24 Q Okay. And how have you heard that name?
25 A I don't actually know what capacity at this
236
1 point.
2 Q Okay. Did he work with or for Active Touch?
3 A I think so. I'm not sure.
4 Q Okay. How about Praful Shah?
5 A Yes. I think he was in the area of business
6 development.
7 Q Do you refer -- or do you recall referring a
8 customer the first name was Mitch to Praful Shah about
9 being a partner of the Active Touch services?
10 A I think so.
11 Q Okay. And do you know if he actually ever
12 signed up as a partner?
13 A I'm not sure.
14 Q Okay. Now, you've indicated there was this
15 conceptual idea and then several months later it was
16 under the -- under the term Live Share and it had gone
17 through some evolution before it got to that point; is
18 that right?
19 A Yes. And it went -- it -- the exact services
20 changed even after it was incorporated.
21 Q How did the -- how did the services change?
22 A The idea we were trying -- like I said, we were
23 trying to find a particular market for it and I think
24 when we were talking about a revenue sharing plan, then
25 we had to focus on a paying audience. And so I think we
237
1 were trying to focus on graphic designers or other
2 people that had, you know -- well, had more small
3 business use for it.
4 Q Okay. At some point in time did you believe
5 this Live Share idea was not going to be successful?
6 A Yes.
7 Q And when was that?
8 A Hard to say.
9 Q Okay. Was it before you left PTYX?
10 A Yes.
11 Q Was it months before you left PTYX or weeks?
12 A Months, I think, because -- because I was
13 switching my attention to building this prototype called
14 Trespass in September. And so I think by then I was
15 already not too confident about Live Share.
16 Q Okay. And did you articulate your concerns as
17 to Live Share to Michael?
18 A I would suppose so. We discussed almost
19 everything.
20 Q Okay. But you can't recall actually having
21 that conversation?
22 A No.
23 Q Okay. Now, did you continue to work on
24 promoting Live Share after September?
25 A I may have.
238
1 Q Okay. How long were you working with the Live
2 Share conception before September came and you had your
3 doubts about it? Was it months, weeks?
4 A Months, I guess.
5 Q Okay. And it sounds like there was several
6 months before conceptually it went to Live Share. So
7 assuming that happened in January, February, do you
8 recall -- did you take steps to get Live Share, like, a
9 web page up and running?
10 A Yes.
11 Q And what month was that if you can recall?
12 A I don't recall.
13 Q Okay. Was it before September?
14 A I would think so.
15 Q Okay. Did you purchase any assets for the Live
16 Share company?
17 A I'm not sure.
18 Q Okay. Did Live Share have any computers that
19 you were able to create this web page with?
20 A I don't think that we clearly divided up the
21 servers to say which one was, you know, PTYX, which was
22 Live Share. I mean, given the fact that -- that the
23 investment didn't happen and so Live Share became just
24 myself and Michael again, I think we kind of conflated
25 (sic) PTYX and Live Share for a while.
239
1 Q So they were, like, one company?
2 A Kind of, except one was a corporation and one
3 was a partnership.
4 Q Okay. I understand. Did you rent any office
5 space for Live Share?
6 A I don't think so.
7 Q Okay. Did you hire any employees?
8 A I'm not sure if, like, the salesperson we
9 referred to earlier was hired for Live Share or not. He
10 may have been.
11 Q Okay. Did you ever hire any contract workers
12 or consultants to get Live Share up and running?
13 A It's possible.
14 Q Okay. Do you recall how many?
15 A Certainly not many.
16 Q Okay. Do you recall any names?
17 A Like I said, there was a technical -- there was
18 a networking guy that we used for a consultant
19 occasionally. Otherwise I don't know.
20 Q Okay.
21 A I don't remember very clearly.
22 Q Did you contact any prospective customers on
23 behalf of Live Share?
24 A Yes.
25 Q Okay. Who did you contact?
240
1 A I think some -- well, when we were looking at
2 web design, some web design companies, around that way.
3 Q Anybody else?
4 A Probably everybody I could -- I could think of
5 that might be suitable.
6 Q Okay. How many people do you think you talked
7 to regarding Live Share with the idea to have them sign
8 on as customers? Hundreds? Dozens?
9 A I would guess dozens.
10 Q Okay. Are you familiar with the name Andrew
11 Conru?
12 A Yes.
13 Q Did you ever contact him and talk to him about
14 the Live Share concept?
15 A Probably.
16 Q What kind of business does he run?
17 A He runs a large number of websites. The most,
18 I think, popular one is a series of dating sites.
19 Q Okay. Did -- was he a customer of PTYX?
20 A I don't think so.
21 Q Okay. And were you able -- did he purchase any
22 of the Live Share services?
23 A No.
24 Q Okay. How important is it when you are looking
25 at, for example, the types of services Active Touch has
241
1 in terms of actually getting those services up and
2 running once you've talked to a customer? Will
3 customers usually wait around and wait for your service
4 to come online or do you have just a small window to get
5 them the services for them to hire you?
6 A The people I was mostly talking to -- I mean,
7 the game at the time was user acquisition and user
8 acquisition you don't usually do one at a time unless
9 you had a lot of money. So what I was trying to do, I
10 was trying to contact people that had existing websites
11 with large numbers of users that may benefit, you know,
12 from having this added service. So, I mean, it's hard
13 to say that I was talking to customers exactly. I was
14 not really talking so much to people that would directly
15 use the service. I was trying to, I guess, more find
16 partners.
17 Q Okay. And there's a finite number of partners
18 that would really lend themselves to this type of
19 technology; is that correct?
20 MR. BARRETT: objection; calls for
21 speculation.
22 THE WITNESS: I don't -- well, finite, I
23 mean --
24 BY MR. BELOATE:
25 Q A limited number of --
242
1 A Not so limited at the time.
2 Q Okay. And were you able to convert any of the
3 trespass.net customers to Live Share customers?
4 A No.
5 Q How many Live Share accounts did you open?
6 A I don't think I opened any.
7 Q You didn't open any?
8 A No.
9 Q At all?
10 A No.
11 Q Did anybody make payments to you to use the
12 Live Share services?
13 A No.
14 MR. BELOATE: Okay. I'm going to have this
15 marked as Exhibit 239.
16 (Deposition Exhibit 239 was marked for
17 identification by the court reporter.)
18 MR. BELOATE: And I apologize, Counsel, there
19 is a Bates-stamped document, but I did not --
20 MR. BARRETT: So this has already been
21 propounded?
22 MR. BELOATE: Yes.
23 MR. BARRETT: Do you know the Bates-stamp
24 number?
25 MR. BELOATE: I might.
243
1 MR. BARRETT: Okay.
2 MR. BELOATE: I'm not sure because this doesn't
3 have a very great description, but it might be 143. I'm
4 sorry. That's the wrong year. That can't be that one.
5 MR. MILLER: Yeah.
6 MR. BARRETT: That's '99.
7 MR. BELOATE: I will try to find that out for
8 you.
9 Q Okay. Have you seen this document before?
10 A Possibly.
11 Q Do you recall having this discussion with
12 your -- well, what is this document?
13 A It seems to be an e-mail between my mother and
14 myself.
15 Q Okay. And the subject says Active Touch EIN.
16 What does EIN stand for?
17 A Employer ID number.
18 Q Okay. And why would you need to obtain the
19 Active Touch employee ID number?
20 A It says that I'm filling out an application for
21 office space.
22 Q Okay. Does that refresh your recollection as
23 to whether or not you got office space for the Live
24 Share company?
25 A No, I don't recall actually this e-mail or -- I
244
1 don't know if we actually -- did we look at office
2 space? I don't -- I don't recall.
3 Q Okay.
4 MR. MILLER: Counsel, just if it helps out, I
5 believe that's P1584 -- P15854, according to your list.
6 MR. BELOATE: Okay. Thank you. This was
7 actually marked as Exhibit 7 previous to your
8 deposition.
9 MR. BARRETT: You mean during the prior
10 deposition?
11 MR. BELOATE: Correct.
12 Q Have you seen this before?
13 A I think I answered that before. I think so.
14 Q Okay. Now it's making reference to the fact
15 you need to know the amount of shares. Now, earlier you
16 testified today that you got 10,000: 5,000 in cash and
17 5,000 in shares?
18 A Yes.
19 Q Is that what this is referring to?
20 A I don't know.
21 Q Okay. Did you get some other shares in 1999 in
22 Active Touch?
23 A I did not.
24 Q Okay. Is there anything else this e-mail could
25 be referring to?
245
1 A I don't know.
2 Q Okay.
3 A There's no context and I don't recall this
4 particular e-mail.
5 Q Okay. Do you see where it says I'm glad to
6 know you are working with Subrah and busy?
7 A Yes.
8 Q What other projects were you working with
9 Subrah on?
10 A Probably preliminary discussions that led to
11 Live Share.
12 Q Okay. Would you have gotten shares in -- with
13 regards to your preliminary discussions as to Live
14 Share?
15 A No.
16 Q Okay. So then -- do you have any idea what
17 this -- when it says -- you need to have -- you have to
18 know the amount of shares this is referring to?
19 A No, I don't.
20 MR. BELOATE: Okay. I'm showing you a
21 document -- well -- I will have this marked as 240.
22 (Deposition Exhibit 240 was marked for
23 identification by the court reporter.)
24 MR. BELOATE: This is a document that was
25 produced as Exhibit 87 at Subrah Iyar's depo.
246
1 MR. MILLER: Whose writing is on this document,
2 Counsel?
3 THE WITNESS: Yes.
4 BY MR. BELOATE:
5 Q All right. This is a two-page document Bates
6 labeled P 15810 and P 15812.
7 MR. BARRETT: Actually, excuse me, Counsel.
8 The question was posed on whose writing is this to the
9 right to the second of last paragraph.
10 MR. BELOATE: I'm not sure. That could have
11 been done during the depo.
12 Q Okay. Do you see these pages?
13 A Yes.
14 Q Have you seen either of these documents
15 before?
16 A Possibly.
17 Q Okay. And then on the first page it appears to
18 be an e-mail sent by yourself on March 15th, 1999. Do
19 you see that?
20 A The part that was quoted?
21 Q Correct.
22 A Appears to be, yes.
23 Q Then on the third paragraph, second sentence,
24 it says I expect to incorporation papers to be completed
25 this week and the website going into alpha in about four
247
1 weeks with a public launch in eight weeks.
2 A Yes.
3 Q Was that a real -- or -- I'm sorry.
4 Was that a reasonable expectation for getting
5 Live Share up and running?
6 A Depends on what you mean by Live Share.
7 Q Getting the website going into alpha?
8 A Yes, but depends on what the website actually
9 did.
10 Q Okay. My understanding is -- let's assume for
11 this question that the website allowed them to use the
12 Active Touch services.
13 MR. BARRETT: Well, that's calling --
14 objection; calling for speculation on that. I think if
15 you go about it a little better and set a little
16 foundation, maybe she will be able to answer the
17 question that you really want an answer to.
18 BY MR. BELOATE:
19 Q Okay. The first document, you see this, is
20 this referring to the Live Share negotiations?
21 A Yes.
22 Q Okay. And then when it talks about expect
23 to -- incorporation papers, that's referring to
24 incorporating Live Share; is that right?
25 A Yes.
248
1 Q And then the website, that's referring to a
2 Live Share website?
3 A I would guess so, yes.
4 Q And the plan that it could go alpha in about
5 four weeks, would that be a reasonable estimation of
6 time?
7 A If it's just a matter of slapping some custom
8 pictures on there, yes.
9 Q Okay. And what's the distinction between an
10 alpha website and a public launch?
11 A Alpha is something for testing versus something
12 open.
13 Q Okay. So alpha wouldn't be on the internet
14 where public launch would be you have access through the
15 internet?
16 A Not necessarily. It's more a matter of how
17 it's meant to be used.
18 Q Okay. And then the last sentence of that
19 paragraph it says so that I will have multiple sources
20 of users available when launch occurs and test sources
21 of traffic before then.
22 A Uh-huh.
23 Q When you were referring to multiple sources of
24 users, what were you referring to?
25 A I was referring to the sentence before that,
249
1 purchasing of traffic, purchasing of users from other
2 websites.
3 Q Okay.
4 A I mean, they -- like, with advertising or
5 similar things.
6 Q And by that you are referring to, like, the
7 dating website and those type of partners?
8 A Possible.
9 Q Okay. Was trespass.net maybe one of the ones
10 you could have been referring to here?
11 A Absolutely not.
12 Q Okay. Why is that?
13 A Wrong time.
14 Q Wrong time. When was trespass.net set up?
15 A I think I answered that already.
16 Q Okay. If you can recall, it would help so we
17 don't have to take a break so I can look that up.
18 A I think it was in September. I could be off a
19 little bit.
20 Q That's right. You said -- that's right.
21 Okay.
22 And is there any reason to believe that this
23 e-mail is not what you sent to Subrah on March 15th,
24 1999?
25 A Nothing special.
250
1 Q Okay. All right. This was Exhibit 5 that was
2 given to you at your first day of deposition.
3 A Yes.
4 Q Now, based on the documents we have reviewed
5 today and your testimony this document appears to be a
6 communication of March 4th, 1999. And it makes
7 references to two invoices. Is your memory refreshed as
8 to what those two invoices are based on today's
9 testimony?
10 A I am still confused, as I was on the last
11 deposition, as to why there are two invoices.
12 Q Okay.
13 A I don't recall there being two separate ones,
14 but maybe there was.
15 Q Okay. And then the second sentence "There are
16 50 percent will be paid in stock."
17 A Yes.
18 Q "If you know, for how much." And I believe you
19 testified earlier you got 10,000, half in cash and half
20 in stock?
21 A Correct.
22 Q So this term would be consistent --
23 A Yes.
24 Q -- with the agreement you just described
25 earlier?
251
1 A Yes.
2 MR. BELOATE: Okay. I will have this marked as
3 241.
4 (Deposition Exhibit 241 was marked for
5 identification by the court reporter.)
6 BY MR. BELOATE:
7 Q 241 is a one-page document Bates-stamped P
8 15808. Have you seen this document before?
9 A Just a minute.
10 Q Sure.
11 A Yes, possibly.
12 Q All right. Do you see at the bottom where --
13 this e-mail is actually responding to an e-mail that you
14 sent Subrah. Do you see where it's going through those
15 numbers in the investment valuation, if you will?
16 A Yes.
17 Q Do you see that paragraph?
18 A Uh-huh.
19 Q Is there any reason why you believe this
20 valuation is incorrect?
21 A The valuation or what I -- or the fact that I
22 wrote this?
23 Q The valuation that you wrote?
24 A Which -- which part do you mean by the
25 valuation?
252
1 Q Where it says my only concern is that --
2 A Yes.
3 Q Yeah.
4 A That's -- but there are several numbers in here
5 in this paragraph.
6 Q Okay.
7 A About possible valuations. So I'm curious
8 which one you mean. Also by which -- what do you mean
9 exactly by valuation being correct?
10 Q Okay. At this date, which is March 3rd, 1999,
11 did you have an understanding as to what the valuation
12 of Live Share was?
13 A Well, as the letter seems to suggest, there was
14 a -- there was an understanding that it would be
15 somewhere between 3 and 5 million.
16 Q Okay. And where did you get that number? Or
17 how did that number come about?
18 A Seems to me that I suggested 5 and Subrah
19 suggested 3.
20 Q Okay. And during this time, were you working
21 for PTYX or were you working for Active Touch?
22 A I was working for PTYX.
23 Q Okay. And what's --
24 A This -- this -- wait. I mean, this
25 conversation is separate from PTYX.
253
1 Q Okay.
2 A I was not representing PTYX in this
3 conversation here.
4 Q You were not?
5 A No.
6 Q This was an individual negotiation?
7 A I was representing it for myself and I wanted
8 to bring Michael into the particular deal as well.
9 Q Okay. Did he know anything about this deal at
10 this time of this conversation?
11 A Michael?
12 Q Yes.
13 A I would assume so, yes.
14 Q But at this point it was an independent
15 conversation you were having with Active Touch?
16 A Not here, but somewhere else -- there was
17 another -- as you see in my e-mail here and I think it's
18 somewhere else in the exhibits that I was replying to
19 e-mail. I was saying -- I was replying to a previous
20 e-mail of Subrah's in which there was a letter of
21 understanding as to a technology licensing and
22 investment deal.
23 Q Okay.
24 A In that e-mail it says that we were talking
25 about a company, including myself and Michael and some
254
1 other person, actually, as well as the Active Touch
2 investment.
3 Q Okay.
4 A So I believe or I was under the impression that
5 I was negotiating this on behalf of myself and Michael
6 and other possible people that we might bring into it,
7 but not as -- on behalf of the partnership itself.
8 Q Okay.
9 A Does that make any sense?
10 Q Sure.
11 Now, do you see where he sends an e-mail
12 responding to yours and he runs through the calculation
13 that if 6.7 percent equals 300,000, then 100,000 equals
14 4.477 million?
15 A Uh-huh.
16 Q Do you see where it says that?
17 A Yes.
18 Q Do you understand how he got that math to get
19 to that number?
20 A I think I do.
21 Q Okay. Did you have an understanding -- the
22 $3,000 that Active Touch was going to be investing --
23 A 300,000.
24 Q Correct. Were they going to be getting shares
25 for that money?
255
1 A Yes.
2 Q And what were the shares going to be worth?
3 A Well, the original idea, as you see in my
4 e-mail, is that they were going to get -- they were
5 going to get 50 percent of the company in exchange for
6 the technology license. And then they were going to get
7 a further 6.7 percent for the 300,000 investment.
8 Q Now, the technology license, did you have any
9 knowledge whether or not that they had other partners
10 that they had those types of distribution agreements
11 with?
12 A Well, they had not done the sort of deal that
13 was proposed here before, I believe. And -- actually,
14 this did not come to pass.
15 Q Okay. And when you say this, you mean the
16 overall Live Share --
17 A No, this particular structuring of things.
18 Q Okay. And by that you mean the initial
19 investment?
20 A Not just initial investment, but also the 50
21 percent in exchange for technology license. That didn't
22 happen either.
23 Q Okay. Did you ever sign a distribution
24 agreement with Active Touch?
25 A I believe I signed a revenue sharing agreement.
256
1 Q Okay. And did you have any understanding that
2 that's binding on you or that PTYX?
3 MR. BARRETT: objection; calls for a legal
4 conclusion.
5 THE WITNESS: I believe Live Share signed it.
6 BY MR. BELOATE:
7 Q Okay. And Live Share is yourself, Michael
8 and --
9 A And I don't think we had other stockholders,
10 but I could be wrong.
11 MR. BELOATE: Okay. All right. I will have
12 this marked as Exhibit 242.
13 (Deposition Exhibit 242 was marked for
14 identification by the court reporter.)
15 BY MR. BELOATE:
16 Q Exhibit 242 is a three-page document Bates
17 number P 15802, P 15803, and P 15805.
18 A Oh.
19 Q Have you seen any of these documents before?
20 A Probably yes.
21 Q Okay. And if we could look at the first page,
22 which is P 15802, this appears to be a response to an
23 e-mail that you sent on February 11th, 1999.
24 Do you see the e-mail that you sent to Subrah?
25 A Yes.
257
1 Q Do you recall if you sent that e-mail?
2 A Not exactly, but I guess so.
3 MR. BELOATE: Okay. All right. Let's take a
4 break.
5 (Recess.)
6 THE VIDEOGRAPHER: This ends tape one. Off the
7 record. The time is 2:21.
8 (Recess.)
9 THE VIDEOGRAPHER: Here begins tape two. We
10 are on the record. The time is 2:44.
11 BY MR. BELOATE:
12 Q All right. Before we left, we were looking at
13 Exhibit 242.
14 A Uh-huh.
15 Q Have you seen the -- the first page of this
16 document, have you seen this? Actually, these are three
17 separate documents.
18 A Okay. Yes, I think so.
19 Q And the subject line is adapted business plan.
20 Do you see that?
21 A Yes.
22 Q Now, Subrah is sending you an e-mail and he is
23 referring to make our site sticky. What does that mean?
24 A That means to keep users who come to the
25 website stay on the website and use its services.
258
1 Q Is that related to advertising?
2 A No, it's not related to advertising. It's more
3 related to, you know, you go to a site and if it's not
4 interesting or useful or you can't figure out how it
5 works, you just leave it. Sticky means make it -- keep
6 the people there on your website longer. So it's
7 actually kind of the opposite of advertising. You don't
8 want to send them off.
9 Q Right. Okay. Now, the market and researching
10 proposal that you did --
11 A Uh-huh.
12 Q -- you believe that was in '99?
13 A I think -- like I said, I was not sure if it
14 was '98 or '99.
15 Q Okay. And then if you see your e-mail on the
16 first page dated February 11th, '99, subject adapted
17 business plan --
18 A Yes.
19 Q -- is this the same business plan you were
20 referring to earlier?
21 A Remind me which one -- I mean, what you mean
22 exactly by earlier.
23 Q Well, you testified earlier that there was a
24 business plan that you had presented to WebEx -- or I'm
25 sorry -- Active Touch that they were considering to get
259
1 more customers.
2 A No. I said that I did a market study.
3 Q Okay.
4 A Not a business plan.
5 Q So would this be something else?
6 A This is something else.
7 Q All right. It says I've had a chance to take
8 the existing business plan for People link and adapt
9 most portions of it for WebEx.
10 A Uh-huh.
11 Q Do you recall what this is referring to?
12 A I think this is referring to my early ideas as
13 to -- as to what evolved into Live Share.
14 Q Okay. And the work that you were doing when --
15 referred to as the adapted business plan, was this
16 something you were doing under the auspices of PTYX or
17 for Active Touch?
18 A Really, I would say at this time I was
19 discussing it as an independent. I mean, on my own, as
20 an independent person. I was not performing -- I do not
21 believe that I was performing this particular work for
22 money in any way; that I had some thoughts about the
23 WebEx services and -- yeah.
24 Q Okay. So this was -- you weren't an employee
25 for either --
260
1 A No.
2 Q -- entity?
3 A No.
4 Q Okay. And this is a business plan that was
5 taken from People link. And you testified earlier you
6 worked for People link for a time; is that right?
7 A Yes.
8 Q And when you worked for People link, you were a
9 representative of PTYX; is that correct?
10 A Correct.
11 Q Okay. And then this is -- this was the initial
12 discussions that led to Live Share?
13 A Yes.
14 Q So this probably began in February of '99 based
15 on this e-mail?
16 A Seems like it.
17 Q Okay. And then you made reference to the
18 market research proposal when you testified earlier
19 today.
20 A Uh-huh.
21 Q When was that done? Was that done before or
22 after this proposal?
23 A I think it was before.
24 Q Okay. So probably in 1998?
25 A I would guess so.
261
1 Q Okay. All right. Then if you look at the
2 second page --
3 A Uh-huh.
4 Q -- it's dated February 22nd, 1999. Have you
5 seen this document before?
6 A Possibly.
7 Q Okay. And there's an e-mail from you to Subrah
8 that he is responding to dated February 19th, '99. Do
9 you see that?
10 A Yes.
11 Q Go ahead and review that and see if that jogs
12 your memory.
13 A Yes.
14 Q Okay. And is this -- would this have been the
15 rough draft for the Live Share proposal?
16 A For an initial -- for an initial proposal,
17 yes.
18 Q Okay. And he makes reference -- or I'm sorry.
19 You make reference this is a joint venture project. Do
20 you see that?
21 A Yes.
22 Q Who was it joint between?
23 A As it says, my partners and I are on one side
24 and Active Touch on the other side.
25 Q And your partners were you and Michael?
262
1 A Me and Michael and I was proposing to bring on
2 somebody else, but that person turned out to be
3 unsuitable.
4 Q And you are referring to the last page of this?
5 A Yes, I am.
6 Q And that's Eric DePrano?
7 A Yes.
8 Q Okay.
9 A I don't think he had any actual participation
10 in the -- in the -- in any business proposals later.
11 Q Who brought out his name?
12 A I did.
13 Q Okay. How did you know him?
14 A I met him at a -- some sort of conference.
15 MR. BELOATE: Okay. I will have this marked as
16 243.
17 (Deposition Exhibit 243 was marked for
18 identification by the court reporter.)
19 BY MR. BELOATE:
20 Q All right. Exhibit 243 is Bates-stamp
21 documents P 0493 to P 0527. Have you seen these
22 documents before?
23 A I think so.
24 Q Okay. And what is this document?
25 A It seems to be the adapted business plan as
263
1 referred to in the previous exhibit.
2 Q Okay. And what's the date on this?
3 A February 10th.
4 Q 1999?
5 A 1999.
6 Q Okay. And these were the power point slides
7 that you adapted from the People link power point?
8 A Yes.
9 Q Okay. And then if you could look at P 0501.
10 A Yes.
11 Q Is this referring to advertising or was this
12 more akin to when you were talking about sticky sites?
13 A This seems to be referring to advertising.
14 Q Okay.
15 A Although the two are related, of course.
16 Q Right.
17 Now, the Live Share conception, was that going
18 to be a free service or a pay service?
19 A It changed over time.
20 Q Okay. Initially what was it supposed to be?
21 A Initially it was going to be a free service
22 with a paying up-sale.
23 Q Okay. And can you look at P 0510.
24 A Yes.
25 Q Now, it makes reference to per user acquisition
264
1 cost. What does that term mean?
2 A It means the cost it takes to get somebody to
3 come to your site and register for your service.
4 Q Okay. Was there ever -- was that number ever
5 calculated for Live Share?
6 A We had thoughts about it, sure.
7 Q Okay. Was it ever determined to be around 40
8 cents per user?
9 A I don't remember the figure exactly.
10 Q Okay.
11 A Please also note that People link completely
12 failed.
13 Q Okay. Have you heard of a company called
14 America Online?
15 A Yes, I have.
16 Q And were they in existence at this time?
17 A Yes, they were.
18 Q Have they grown significantly since '99?
19 A I believe so. Actually, I'm not sure if they
20 have grown significantly since then.
21 Q Can you look at P 0525.
22 A Yes.
23 Q Was this projection accurate?
24 A I don't know actually.
25 Q As you sit here today, you have no
265
1 understanding if instant message usage has grown faster
2 than the overall market?
3 A No, I don't know if it's grown faster than
4 e-mail.
5 Q Okay. And this is the business plan that you
6 presented to Mr. Subrah?
7 A This is a business plan. This was -- as I
8 said, something that I adapted with the People link
9 model --
10 Q Uh-huh.
11 A -- as a reference point.
12 Q Okay. On the first page do you see where the
13 word confidential is?
14 A Yes.
15 Q Did you add that word or was that word already
16 on there?
17 A I don't know.
18 Q Okay. So this could have been a People link
19 confidential document?
20 A This particular one, after it's been adapted,
21 certainly not.
22 Q Okay. So you probably put confidential on
23 there?
24 A I don't know.
25 Q Okay. All right. This was Exhibit 3 at your
266
1 previous deposition or -- I'm sorry -- the first day of
2 this deposition. It appears to be an e-mail dated
3 December 15th, 1998, from Subrah to Erin Zhu. It says
4 you also have my okay to initiate discussions of
5 collaboration between our companies. Which companies
6 was he referring to?
7 A Just a second. My e-mail suggests that it's
8 People link and Active Touch.
9 Q Okay. What's your e-mail address here?
10 A My PTYX account.
11 Q Your PTYX account. Okay. So what suggests
12 it's People link?
13 A Pardon?
14 Q I'm sorry. What was your --
15 A My e-mail saying some form of collaboration
16 between People link and Active Touch.
17 Q Okay. Your work at People link that was on
18 behalf of PTYX; correct? You were a consultant?
19 A Correct. Although, as I said -- well, it
20 doesn't matter.
21 Q Okay. Did People link understand that you were
22 going to Active Touch and giving them this proposal?
23 A I don't think so.
24 Q So you weren't a representative of People link?
25 A No.
267
1 MR. BELOATE: Okay. All right. I will have
2 this marked as 244.
3 (Deposition Exhibit 244 was marked for
4 identification by the court reporter.)
5 BY MR. BELOATE:
6 Q Exhibit 244 is a Bates-stamp document P 15468.
7 Have you seen this document before?
8 A Maybe. It's possible.
9 Q What is this document?
10 A It appears to be an e-mail between myself and
11 Subrah.
12 Q And what's the date?
13 A December 5th, 1998.
14 Q And it says, the very last sentence, "There's a
15 lot of interesting new developments involving AOL and
16 Netscape that I want to get some concrete info on."
17 Do you recall what you are referring to there?
18 A Not really, no.
19 Q Okay. And was this having to do with the
20 market research proposal or the People link proposal?
21 A The market research proposal.
22 MR. BELOATE: The market research proposal.
23 Okay.
24 I'm having this document marked as Exhibit 245,
25 Bates label P 8498.
268
1 (Deposition Exhibit 245 was marked for
2 identification by the court reporter.)
3 BY MR. BELOATE:
4 Q Have you seen this document before?
5 A Just a minute. Probably.
6 Q All right. What's the subject line on this
7 document?
8 A Looking forward to your joining us.
9 Q And what is -- do you know what that has to do
10 with?
11 A I think at the time it was a consideration
12 of -- of my working for Active Touch in some capacity.
13 Q Okay. And whose idea was that?
14 A I can't say.
15 Q Okay. Would that have been your idea?
16 A Possible.
17 Q Okay. And this is September 2nd, 1998?
18 A Yes.
19 Q And just to be fair, there's another date. It
20 says date Friday, 17 July, 1998. Do you see that?
21 A Yes.
22 Q Okay. Do you have -- do you have an
23 understanding as to which date this e-mail was sent?
24 A July 17th, it seems like.
25 Q Okay. And who is this from?
269
1 A My father.
2 Q All right. And if you see the third sentence,
3 it says "Dave and Rusty had serious concerns and they
4 talked to Subrah and then me."
5 A Yes.
6 Q Do you have any idea what he's talking about
7 there, what the serious concerns were?
8 MR. BARRETT: objection; calls for
9 speculation.
10 THE WITNESS: I would guess about what my
11 father mentioned about.
12 BY MR. BELOATE:
13 Q The challenge of maintaining --
14 A Yes.
15 Q -- both the parent/child and a colleague
16 relationship?
17 A Yes.
18 Q Okay. And did you have discussions with Subrah
19 about working for Active Touch?
20 A I think I had discussions with Subrah that
21 eventually evolved into a more business level rather
22 than employment situation.
23 Q Okay. So this e-mail envisioned you being
24 employee?
25 A Appears to, yes.
270
1 MR. BELOATE: Okay. I will have that marked
2 246.
3 (Deposition Exhibit 246 was marked for
4 identification by the court reporter.)
5 BY MR. BELOATE:
6 Q All right. 246 is a two-page document P 8484
7 and P 8485. Okay. Have you seen this document before?
8 A Possibly.
9 Q Is the one you have on the top 8484?
10 A No, it's 8485.
11 Q I think I noted that when I was handing it to
12 you. If you want to rip those apart, they are in the
13 wrong order.
14 A I will just flip them.
15 Q Thank you.
16 A Yeah.
17 Q All right. Have you seen these documents
18 before?
19 A Possibly.
20 Q Okay. And do you see your e-mail where your
21 father is responding to that you sent him on July 28th,
22 1998? It's at the bottom. I apologize.
23 A Yeah. Yeah. No. I'm just curious about the
24 couple of top lines on this. I did not know that
25 Michael was reading my e-mail back then.
271
1 Yes. Go ahead.
2 Q Okay. You see the July 28th, 1998?
3 A Yes.
4 Q Okay. And you are sending an e-mail to your
5 mom and dad that says you took a job with People link?
6 A Yes.
7 Q Is that what happened?
8 A Yes.
9 Q Okay. And when you say a very significant
10 amount of stock, how much stock did you obtain by
11 working for People link?
12 A I think they were meant to be stock options.
13 And they never whatever the word is -- I never received
14 any actual stock or options.
15 Q So the offer didn't really have a significant
16 amount of stock?
17 A I did not work for them long enough, I
18 believe.
19 Q Okay.
20 A I think they did offer, yes.
21 MR. BELOATE: Okay. I will have marked as
22 247.
23 (Deposition Exhibit 247 was marked for
24 identification by the court reporter.)
25 BY MR. BELOATE:
272
1 Q Exhibit 247 is a single page Bates document
2 P 14217. Have you seen this document before?
3 MR. BARRETT: Excuse me. You read it -- it's
4 Bates stamped P 15217.
5 MR. BELOATE: Thank you, Counsel. Yes, that's
6 right.
7 THE WITNESS: It's possible, yes.
8 BY MR. BELOATE:
9 Q Okay. And what is this document?
10 A Appears to be an e-mail from my mother to
11 myself.
12 Q What's the date on this?
13 A May 28th, 1998.
14 Q Okay. And where were you working May 28th,
15 1998?
16 A At PTYX, I assume.
17 Q Okay. And the last -- the second to the last
18 sentence, it says "For work at Active Touch, this is the
19 last time you can come in." Why is this the last time
20 you could come?
21 MR. MILLER: objection; calls for speculation.
22 THE WITNESS: I don't care to speculate.
23 BY MR. BELOATE:
24 Q So you don't have any idea what she was
25 referring to there?
273
1 A No.
2 Q Okay. Did you have previous opportunities that
3 you could have worked at Active Touch?
4 MR. BARRETT: objection; calls for
5 speculation.
6 THE WITNESS: I would guess so.
7 BY MR. BELOATE:
8 Q Okay. Who is Larry Wilcox?
9 A Larry Wilcox no clear recollection.
10 Q Okay.
11 A I know of the name.
12 MR. BELOATE: 248.
13 (Deposition Exhibit 248 was marked for
14 identification by the court reporter.)
15 BY MR. BELOATE:
16 Q Exhibit 248 is a one-page document P 12556.
17 Have you seen this document before?
18 A I remember who he is now.
19 Q Okay. And who is he?
20 A He was working at an entertainment company.
21 Q Okay. Did you ever negotiate having any
22 business together?
23 A I guess we talked about it according to this
24 e-mail.
25 Q Okay. Do you have any recollection about it
274
1 outside of this e-mail?
2 A I remember that there was this party. And I do
3 not -- I certainly did not participate in any way in
4 that other than as an attendee.
5 Q Do you remember being in contract negotiations
6 with him?
7 A No, I don't.
8 Q Okay.
9 A And apparently I didn't have much impression
10 back then either.
11 Q Okay. And why do you say that?
12 A Larry appears to say that I thought there
13 wasn't any deals. I have no recollection.
14 MR. BELOATE: Okay. 249.
15 (Deposition Exhibit 249 was marked for
16 identification by the court reporter.)
17 BY MR. BELOATE:
18 Q Have you seen this document before? It's Bates
19 labeled P 8982.
20 A Possibly.
21 Q Okay. And what is this?
22 A Appears to be an e-mail from my father to
23 myself.
24 Q And what are -- what's the discussion?
25 A It seems to be a number of things. Some of it
275
1 personal. Most of it personal. Some of it not so.
2 Q Okay. Focusing in on -- okay. This appears to
3 be dated May 13th, 1997. Do you see that?
4 A Yes.
5 Q It says in the second paragraph we received a
6 box from New Era Print. Did you ever do any work with
7 New Era Print in '97?
8 A It's possible that I ordered some -- some
9 things from them. I don't know.
10 Q Did you do any marketing material for Silver
11 Computers?
12 A I may have --
13 Q Okay.
14 A -- tried to develop something; but, as you can
15 see, not with optimal results.
16 Q And what do you mean by that?
17 A It says with lots of errors.
18 Q Okay. So the envelopes, letterheads and
19 business cars -- I'm assuming that's cards. Do you know
20 if those were actually able to be used at DB Expo?
21 A Apparently not.
22 Q Okay. And when you did this work, were you
23 paid to do this work for Silver Computers?
24 A I don't think so.
25 Q Okay. So you volunteered your time?
276
1 A I would guess, yes.
2 MR. BELOATE: Okay. 250.
3 (Deposition Exhibit 250 was marked for
4 identification by the court reporter.)
5 BY MR. BELOATE:
6 Q All right. Exhibit 250 is a one-page document
7 P 8984. Have you seen this document before?
8 A Possibly.
9 Q And what is this document?
10 A E-mail from my father to myself.
11 Q Okay. And what's the subject line?
12 A Please help us.
13 Q And is this also referring to the DB Expo
14 marketing material?
15 A Part of it, yes.
16 Q Okay. And it makes reference to Stellar and
17 the website. Were you doing some work with the website
18 for Stellar Computers?
19 A I may have been.
20 Q Okay. Do you have any recollection as you sit
21 here today?
22 A Not really, no.
23 MR. BELOATE: Okay. 251.
24 (Deposition Exhibit 251 was marked for
25 identification by the court reporter.)
277
1 BY MR. BELOATE:
2 Q All right. Exhibit 251 is a two-page document
3 Bates P 0135 and P 0136. This was an exhibit at Subrah
4 Iyar's deposition.
5 A Uh-huh.
6 Q Have you seen this document before?
7 A Possibly.
8 Q Okay. What is this document?
9 A It seems to be information for business cards
10 to be printed.
11 Q All right. And do you see where your name
12 appears on the first page?
13 A Yes.
14 Q And were you vice president of projects?
15 A No.
16 Q You were not vice president of projects for
17 Stellar Computer?
18 A No, I was not.
19 Q Okay. Did you ever use Erin at
20 stellarcomp.com?
21 A I don't think so, no.
22 Q Okay. Did you ever work for Stellar
23 Computers?
24 A Not except as a volunteer, I believe.
25 MR. BELOATE: Okay. Can I have this marked as
278
1 252.
2 (Deposition Exhibit 252 was marked for
3 identification by the court reporter.)
4 BY MR. BELOATE:
5 Q Exhibit 252 is a one-page document
6 Bates-stamped P 0144. Have you seen this document
7 before?
8 A Probably.
9 Q And what is this document?
10 A Appears to be a -- an ad for a sales and
11 marketing executive.
12 Q All right. And what's the date on this?
13 A April 2nd, 1997.
14 Q On April 2nd, 1997, was PTYX a partnership that
15 you and Michael Zeleny were operating under?
16 A I think so.
17 Q Okay. Does this e-mail help refresh your
18 recollection if that in fact is the truth?
19 A I think so.
20 Q Okay. So if you can answer yes or no, was PTYX
21 a partnership that you and Michael were working for in
22 April 1997?
23 A Yes.
24 Q Okay. Thank you.
25 Do you know a gentleman by the name Amir
279
1 Maykoff (phonetic)?
2 A Yes.
3 Q And who is that gentleman?
4 A A friend of Michael's.
5 Q Okay. And is there a situation where he was
6 loaned -- or given 400,000?
7 A Excuse me?
8 MR. BARRETT: Again, objection; lack of
9 foundation. And you want to lead into that a little
10 bit, please.
11 BY MR. BELOATE:
12 Q Amir Maykoff, what did he do?
13 A He worked for investment banks, I believe.
14 Q Okay. Was he ever hired by PTYX?
15 A I don't think so.
16 Q Okay. Did he ever loan money to PTYX or you or
17 Michael?
18 MR. BARRETT: objection; compound.
19 THE WITNESS: Not to my knowledge.
20 BY MR. BELOATE:
21 Q Okay. Did you ever ask your father to call
22 him?
23 A I think I did.
24 Q What's that?
25 A I think I did.
280
1 Q And why did you ask him to call him?
2 A Because I was told that he had some expertise
3 in financial matters.
4 Q Okay. Now, at some point, the Live Share
5 agreement, the investment portion of that fell out; is
6 that correct?
7 A Correct.
8 Q Whose idea was that?
9 A Discussion between Subrah and myself.
10 Q Okay. What about discussions with your father?
11 A It's not my father's decision.
12 Q It was not your father's decision?
13 A No.
14 Q He had nothing to do with that?
15 A I believe from previous exhibits, you --
16 there's e-mails from my father saying that he would
17 support me. It was my idea -- I mean, it was my
18 negotiation with Subrah and my father was not completely
19 involved.
20 Q This is Exhibit 14 from the first day of your
21 deposition. Do you see where you had written to Subrah
22 and he is responding?
23 A Uh-huh.
24 Q Your initial e-mail says "After our
25 conversation last night and further consultation with
281
1 Min" --
2 A Uh-huh.
3 Q -- "I feel that the best way for Live Share to
4 get under way as quickly as possible would be to drop
5 out investment issue."
6 A Uh-huh.
7 Q Who is Min?
8 A My father.
9 Q Okay.
10 A But you also have other e-mails saying exactly
11 what it was that he said, which is that he would support
12 my decision against Subrah, if necessary.
13 Q And do you recall if those e-mails came before
14 or after this one?
15 A I would guess before, but I don't have them in
16 front of me.
17 Q Okay. And what's the date of this e-mail?
18 A June 17th, 1999.
19 Q Did Live Share obtain any funding during its
20 life?
21 MR. BARRETT: objection; broad, a little bit
22 ambiguous.
23 You can answer if you have an answer.
24 THE WITNESS: It received some money, yes.
25 BY MR. BELOATE:
282
1 Q And who did it receive money from?
2 A Well, as we mentioned earlier, there were loans
3 from both sets of parents.
4 Q And you and Michael understood that these were
5 loans?
6 A We understood these as parental contributions.
7 They are loans if we are successful.
8 Q Okay. So they were gifts if you aren't
9 successful and they are loans if you are successful; is
10 that --
11 A That's how things more or less operated in my
12 end -- in my family. And that's how I understood -- and
13 I thought -- I was under the impression that Michael's
14 family operated similarly.
15 Q And how did you formulate that impression?
16 A Things -- by having been around Michael for
17 many years.
18 Q Uh-huh.
19 A And the fact that he received a lot of money
20 and didn't really give any back.
21 Q Okay. You are saying he. So it wasn't PTYX
22 who received money; it was Michael who received money
23 from his parents?
24 A No. You asked how I received an impression
25 that parental money was treated that way.
283
1 Q Right.
2 A And that's how I received the impression that
3 on a personal basis, money from the parents, even loans,
4 did not have exact expectations of repayment.
5 Q Okay. Did you ever sign any checks of
6 repayment to Michael's parents?
7 A I think so.
8 Q Okay. So was PTYX successful, then?
9 A No, not that it was successful, but Michael
10 insisted after a while that some money had to be paid
11 back.
12 Q Okay. And do you recall the first instance
13 that that occurred?
14 A No.
15 Q Was it prior to 1999?
16 A I don't know.
17 Q Okay. So it could have been, you just don't
18 recall?
19 A I don't recall.
20 Q Okay. And aside from the parents making
21 contributions to Live Share, did anybody else
22 contribute?
23 A Well, I guess we did.
24 Q And how --
25 A Michael and I.
284
1 Q Okay. And how did you do that?
2 A Live Share used the assets of PTYX basically.
3 Q Okay. Do you have any idea how much your
4 parents invested into Live Share?
5 A Not really.
6 Q Okay. And were all these monies from your
7 parents or were they -- were any of them from Active
8 Touch?
9 A They were from my parents personally.
10 Q Okay. And did you have an understanding why
11 you were getting money personally from your parents
12 versus Active Touch?
13 A Because they were my parents trying to help a
14 business venture of mine.
15 Q Okay. And this business venture would have
16 been with Active Touch, their company?
17 A Only -- well, eventually it was only a revenue
18 sharing agreement. It wasn't a joint venture anymore.
19 Q Okay. And the revenue sharing agreement, would
20 Active Touch obtain shares in your company?
21 A No.
22 Q It would not?
23 A No.
24 Q Okay. And was that something that was
25 communicated in e-mails?
285
1 A Yes.
2 Q That there would be no shares?
3 A No.
4 Q Okay. So it would just be a split in the
5 revenue? That's it?
6 A Yes.
7 Q Okay. Now, prior to September '99 when you
8 started having your doubts as to Live Share's success,
9 there were no accounts opened for Live Share?
10 A No active customers.
11 Q Okay. Did anybody open any accounts? Maybe
12 they weren't active, but they opened accounts?
13 A Test accounts probably.
14 Q Okay. Were these test clients or were they
15 real clients?
16 A No, they were not real clients.
17 Q Okay. After September of '99, were there any
18 clients --
19 A No.
20 Q -- or accounts open?
21 A No.
22 Q No accounts had been opened up?
23 A No. There were no real users of Live Share.
24 Q Okay. Did you ever indicate to your parents
25 that you had signed up accounts?
286
1 A I indicated to my parents that I had -- that I
2 had sources.
3 Q Uh-huh.
4 A But they never fully worked out.
5 Q Okay. And what sources are you referring to?
6 A Other websites that I was talking to for
7 converting or sending over their users.
8 Q Okay. So if you had sent an e-mail or made a
9 statement to somebody that you had opened up ten
10 accounts, that would have been false; is that right?
11 MR. BARRETT: objection; calls for
12 speculation.
13 THE WITNESS: Well, first of all, there was --
14 I'm quite sure that there were no paying accounts.
15 BY MR. BELOATE:
16 Q Okay.
17 A If I said I opened ten accounts, I would have
18 guessed that they were for testing purposes.
19 Q Okay. But they wouldn't have been real
20 clients; they would have been made up just to test out
21 the system?
22 A I think so.
23 MR. BELOATE: Okay. I will have this marked as
24 253.
25 (Deposition Exhibit 253 was marked for
287
1 identification by the court reporter.)
2 BY MR. BELOATE:
3 Q All right. And this was Exhibit 63 in Subrah
4 Iyar's deposition Bates label P 0204. Have you seen
5 this document before?
6 A Possibly.
7 Q Okay. And what is this document?
8 A It's an e-mail from my father to myself.
9 Q And what's it -- what's the date?
10 A August 19th, 1999?
11 Q And do you see the second sentence where it
12 says glad to hear you will sign a deal and get 1,000
13 accounts?
14 A Yes.
15 Q Did you sign the deal and get 1,000 accounts?
16 A No, I did not.
17 Q What were you referring to here?
18 A I was trying to close a deal for 1,000
19 accounts.
20 Q Okay. And who were you trying to close this
21 deal with?
22 A I forget.
23 Q So 1,000 accounts isn't that large a number?
24 A No. I said that I had -- I was working on
25 these accounts.
288
1 Q Uh-huh.
2 A That I was trying to do them, but this never
3 worked out and these never went live.
4 Q Is that similar to Zentropy and Carbon 14?
5 A No. These were larger companies. They would
6 have -- they would have been different kind of thing.
7 Q Okay. And did you get Live Share accounts on
8 Zentropy and Carbon 14?
9 A No, I did not.
10 Q And did you indicate to your father that you
11 had?
12 A I was trying to be more hopeful about the
13 project than was actually the case.
14 Q So these e-mails are just hopeful?
15 A Yes.
16 MR. BELOATE: Okay. All right. Exhibit 254 is
17 a one-page document Bates label P 15832.
18 (Deposition Exhibit 254 was marked for
19 identification by the court reporter.)
20 BY MR. BELOATE:
21 Q Have you seen this document before?
22 A Yeah, I think this was referred to in the last
23 deposition as well. But maybe in a --
24 Q Okay.
25 A -- maybe in a follow up.
289
1 Q And what is this document?
2 A It's an e-mail from Subrah to Praful.
3 Q All right. And below that there's a trailing
4 e-mail it appears that you had sent on July 22nd, 1999,
5 to Subrah. Do you see that?
6 A Yes.
7 Q It says "I have faxed and signed a copy of the
8 WebEx licensing agreement yesterday."
9 A Yes.
10 Q "Please let me know if you received it and what
11 the next step is in implementing an operating version
12 for Live Share."
13 A Uh-huh.
14 Q Do you recall signing a copy of the WebEx
15 licensing agreement?
16 A I think so.
17 Q Okay. Did you sign more than one?
18 A I don't recall.
19 Q Okay. So you could have signed more than one,
20 but you don't recall?
21 A No.
22 Q Okay. And did you work with Praful Shah?
23 A I believe so.
24 Q Okay. And what did you do with him?
25 A I exchanged some e-mails and probably telephone
290
1 conversations.
2 Q Okay. And the e-mail from Subrah to Praful
3 says -- indicates to you "Please work with Praful to get
4 your site up."
5 Were you able to get your site up?
6 A Not really.
7 Q What do you mean not really? In what way were
8 you able to get your site up?
9 A We never got -- you see, the thing was, we
10 started the -- the original Live Share idea was for free
11 services to acquire a lot of people. This, as you can
12 see, has turned into a paying service on a revenue
13 sharing basis. And, frankly, on my side or our side, we
14 couldn't really get this particular act together of
15 acquiring paying users very well. And so we never -- I
16 mean, we did some photographic design and we hooked up
17 some things and I would not really call it a fully
18 functioning service.
19 MR. BELOATE: 255.
20 (Deposition Exhibit 255 was marked for
21 identification by the court reporter.)
22 BY MR. BELOATE:
23 Q All right. Exhibit 255 is a two-page document
24 P 0079, P 0080. Have you seen these documents before?
25 A I think so, yes.
291
1 Q All right. And this appears to be a response
2 from Subrah to yourself to an e-mail that you sent on
3 June 15th, 1999?
4 A Correct.
5 Q Okay. Is there anything about this document
6 that makes you think it's not authentic?
7 A No, I don't think so.
8 Q Okay. And the first line -- in your e-mail to
9 Subrah is it's been more than three months. And this is
10 dated June 15th, 1999.
11 So is it fair to say that the Live Share
12 discussions began three months prior to June?
13 A Yes.
14 Q Okay. Did you sell any Live Share revenue to
15 advertisers prior to getting the site up?
16 A Can you clarify that?
17 Q Did you sell any advertising? Like somebody
18 put in a little link to advertise some product.
19 A I don't think so.
20 MR. BELOATE: Okay. I only have one copy. I
21 apologize. I will have this marked as 256. This was 52
22 in Subrah Iyar's deposition. This is stack of documents
23 Bates label P 1552 to P 1577.
24 (Deposition Exhibit 256 was marked for
25 identification by the court reporter.)
292
1 THE WITNESS: Uh-huh.
2 BY MR. BELOATE:
3 Q Have you seen these documents before?
4 A I am not sure. I am not sure because it was
5 sent to our lawyer. And I may have seen it, but I don't
6 know.
7 Q Okay. Now, you indicated that you were paid
8 $10,000 for work you did for Active Touch. $5,000 was
9 in cash and 5,000 was in shares; is that correct?
10 A Correct.
11 Q And how many shares did you obtain?
12 A 5,000.
13 Q Okay. The 5,000 shares was in lieu of $5,000;
14 is that right?
15 A Correct.
16 Q So the shares should have been a dollar a
17 piece; is that correct?
18 A Yes.
19 Q Okay. So your understanding is the value of
20 the shares when you obtained them was a dollar a piece?
21 A Back in 1998, yes.
22 Q What's that?
23 A Back in 1998, yes.
24 Q Okay. Did you have an understanding -- if you
25 look at page P 1556, under section 4.6, it says board of
293
1 directors. This is referring to Live Share, I'm
2 assuming. It says Erin Zhu, Michael Zeleny, Subrah Iyar
3 and Thomas Colby.
4 A Uh-huh.
5 Q Did you understand that those would be the
6 board of directors at any point in time?
7 A I think that's what was being discussed.
8 Q Okay. And who came up with that term?
9 A I would guess that it was Active Touch's side.
10 Q Okay. Have you ever seen a stock grant
11 agreement?
12 A For?
13 Q For when you obtain shares in a company.
14 A Maybe.
15 Q Okay. When you obtained the shares of WebEx --
16 A Yes.
17 Q -- did you sign any sort of paperwork?
18 A I don't remember.
19 Q Okay. Between 1998 and 1999, do you have any
20 understanding if Active Touch increased in value?
21 A I hope so.
22 MR. BELOATE: Okay. I will have this marked as
23 257, I'm afraid.
24 (Deposition Exhibit 257 was marked for
25 identification by the court reporter.)
294
1 MR. BARRETT: If you want to take a moment and
2 read all of this right now.
3 THE WITNESS: Yes, we might take a while.
4 BY MR. BELOATE:
5 Q All right. Exhibit 257 is a large stack of
6 documents P 1329 to P 1443. The cover -- have you seen
7 these documents before?
8 A I would guess so, yes.
9 Q There's a little over 100, so I don't expect
10 for you to go through them meticulously.
11 A Thank you.
12 Q What are these documents?
13 A Appears to be the corporate records for Live
14 Share.
15 Q All right. And does this -- would any of these
16 documents help refresh your recollection as to when this
17 company was incorporated?
18 A I will take its word for it.
19 MR. BARRETT: Counsel, if you have a specific
20 page that would refresh her memory, that would be better
21 than having her go through 100 plus pages looking for
22 it.
23 THE WITNESS: It appears to be April 1st,
24 1999.
25 BY MR. BELOATE:
295
1 Q All right. And where do you gather that?
2 A Page 1664 is the first place I see a date.
3 Q If you look at P 1440 --
4 A Okay.
5 Q -- that refers to authorized shares of common
6 stock in Live Share --
7 A Uh-huh.
8 Q -- and that says April 19th, 1999.
9 A Okay.
10 Q So would it be --
11 A Does it?
12 Q Doesn't it?
13 A I don't know. Oh, yeah. It says 19th, but on
14 the very top it says April 1st.
15 Q Correct. You are right. You are right.
16 A Okay. Fine.
17 Q So do these documents refresh your recollection
18 as to when Live Share was incorporated?
19 A Like I said, I will take their word for it.
20 Q Okay. And were you involved in getting these
21 documents prepared?
22 A I believe I was present, yes.
23 Q Okay. And do you see P 1392?
24 A 13- -- just a minute. I am -- I am getting
25 there. Yes. Well, that seems to say April 1st.
296
1 Q Is that your signature?
2 A Yes, it is.
3 Q Okay. Do you have any reason to believe that
4 these documents are not authentic?
5 A Not particularly, no.
6 Q Okay.
7 A It's too much work.
8 Q Do you recall seeing the WebEx share
9 certificate you received?
10 A Yes.
11 Q What does it look like?
12 A A normal size piece of paper.
13 Q Okay. Were there any pictures on it?
14 MR. BARRETT: Counsel, instead of -- maybe you
15 can just show her if you want her to recall what the
16 document looks like. Because there is a copy of the
17 document in this exhibit right here. And it would be
18 easier than her trying to remember what a stock
19 certificate looks like.
20 BY MR. BELOATE:
21 Q I'm trying to do this with your own knowledge
22 first. Then we will look at the document.
23 A Okay.
24 Q But do you recall --
25 A This stock and the WebEx stock certificate you
297
1 are talking about are the only ones I have ever seen.
2 Q Okay.
3 A So --
4 Q Let's take a look at this one and let me ask
5 you, does the Active Touch one resemble this one or do
6 you have a recollection?
7 A I don't have a recollection.
8 Q Okay. That's all I need.
9 A I kind of assume they all look like that.
10 MR. BELOATE: All right. 258.
11 (Deposition Exhibit 258 was marked for
12 identification by the court reporter.)
13 THE WITNESS: Okay.
14 BY MR. BELOATE:
15 Q Have you seen this document before?
16 A I think so, yes.
17 Q Okay. And what is this document?
18 A It appears to be a stock certificate for
19 WebEx.
20 Q Okay. And what's the date on this?
21 A The only date I see says March 1st, 1999.
22 Q And when did you receive your shares?
23 A 2000 --
24 Q 2000?
25 A 2001.
298
1 Q 2001?
2 A Yes.
3 Q Okay. And was -- do you have any knowledge as
4 to whether or not WebEx was giving common stock in March
5 of '99?
6 MR. BARRETT: objection; calls for
7 speculation. Also calls for a legal conclusion.
8 THE WITNESS: I don't know. It wasn't even
9 called WebEx then.
10 MR. BELOATE: Thank you.
11 MR. BELOATE: Let's take a break.
12 THE VIDEOGRAPHER: Off the record. The time is
13 3:45.
14 (Recess.)
15 THE VIDEOGRAPHER: Back on the record. The
16 time is 4:33.
17 BY MR. BELOATE:
18 Q All right. Welcome back, Ms. Zhu. You
19 understand you are still under oath?
20 A Yes.
21 MR. BELOATE: Okay. All right. I will have
22 this marked as 259.
23 (Deposition Exhibit 259 was marked for
24 identification by the court reporter.)
25 BY MR. BELOATE:
299
1 Q All right. Exhibit 259 is a two-page document
2 Bates-stamped P 0205. Have you seen these documents
3 before?
4 A I think so.
5 Q You do?
6 A Yeah.
7 Q Okay. And what's the -- what are these
8 documents?
9 A Appear to be e-mails between my father and
10 myself.
11 Q It appears you are talking about Zentropy and
12 Carbon 14. Do you see that?
13 A Yes.
14 Q And then in the fourth paragraph you are
15 talking about trespass.net?
16 A Yes.
17 Q Okay. Then in the second paragraph, it refers
18 to a machine that Joss set up for you.
19 A Uh-huh.
20 Q Who is Joss?
21 A An engineer at Active Touch, I believe.
22 Q All right. And it also indicates to your
23 father that you have set up building a legal site using
24 Live Share.
25 A Uh-huh.
300
1 Q Was that ever up and running for Live Share?
2 A No.
3 Q Okay. What does it mean you were building a
4 legal site?
5 A I believe we were looking at virtual offices
6 for lawyers.
7 Q Okay. All right. Is there any -- after you
8 review this is there any reason that you have believe
9 that you didn't send this to your father?
10 A I don't think so.
11 MR. BELOATE: Okay. 260.
12 (Deposition Exhibit 260 was marked for
13 identification by the court reporter.)
14 BY MR. BELOATE:
15 Q 260 is several pages Bates-stamped W 00009 to W
16 00014.
17 A Uh-huh.
18 Q All right. And have you seen these documents
19 before?
20 A No.
21 Q Okay. And you previously testified that the
22 stocks that you were given from WebEx, those were for
23 work you did in '98?
24 A Yes.
25 Q Okay. And what's the title of this document?
301
1 A Active Touch 1998 stock incentive plan.
2 Q All right. Do you see where it says date of
3 grant on the first page?
4 A Yes.
5 Q Is that the same date that appears on the stock
6 certificate?
7 A I have to look at it.
8 Q Okay.
9 A Yes, it appears to be.
10 Q And you are looking at Exhibit 258?
11 A Yes.
12 Q All right. And you earlier testified that
13 these 5,000 shares were in lieu of a dollar per share
14 based on the work you did; is that correct?
15 A Correct.
16 Q Do you see where it says value of stock per
17 share at grant 25 cents per share?
18 A I do.
19 Q So according to this, you should have received
20 20,000 shares if you were getting a dollar of value for
21 each share?
22 A I don't understand how that works.
23 Q Okay. All right. Did you ever sign such a
24 document as this?
25 A I don't think I have seen this. I mean, I
302
1 could be mistaken, but I certainly don't remember.
2 Q Okay.
3 A Anything like this.
4 MR. BELOATE: All right. 261.
5 (Deposition Exhibit 261 was marked for
6 identification by the court reporter.)
7 BY MR. BELOATE:
8 Q And Exhibit 261 is several pages Bates-stamped
9 P 4382 to P 4388. Have you seen these documents before?
10 A Give me a minute, please.
11 Q Sure.
12 A Okay.
13 Q Have you seen these documents before?
14 A Possibly.
15 Q All right. And this appears to be an e-mail to
16 David attaching the proposal by Active Touch. Who is
17 this referring to when it says David?
18 A David Affeld.
19 Q And who is he?
20 A The attorney that helped us with the
21 incorporation papers.
22 Q Okay. And the e-mail that's sent -- forwarded
23 to him, what's the subject line on that e-mail?
24 A Letter of understanding.
25 Q And who is that from?
303
1 A Subrah.
2 Q All right. And if you could look at P 4384 --
3 A Yeah.
4 Q -- do you see where it says agreement?
5 A Yes.
6 Q It says this agreement is made as of March
7 blank comma 1999?
8 A Uh-huh.
9 Q Was it your understanding that this agreement
10 was going to be executed in March of 1999?
11 A It was my hope.
12 Q Okay. And what was the e-mail date to David?
13 A March 31st, 19- -- I mean, March 30th, 1999.
14 Q Okay. Then if you could turn to P 1487, who
15 are listed as the primary founders?
16 A If I read this correctly, then myself and
17 Michael.
18 Q Anyone else?
19 A I'm -- like I said, I'm not quite sure how to
20 read this. It looks like primary founders and then
21 those two names and Active Touch is a different party.
22 Q Okay.
23 A That's how it looks to me.
24 MR. BELOATE: Okay. Mark as 262.
25 (Deposition Exhibit 262 was marked for
304
1 identification by the court reporter.)
2 BY MR. BELOATE:
3 Q Exhibit 262 is a three-page Bates-stamp
4 document P 14968 to P 14970. Have you seen this
5 document before?
6 A I don't think so.
7 Q Okay. And what's the date of this?
8 A It's January 6th, 2000.
9 Q All right. Who is Shura? Do you know?
10 A I believe a friend of Michael's.
11 Q All right. And do you see where it says "Erin
12 and I own 100 percent of trespass.net, which runs on our
13 network." Is that a true statement?
14 A I think so.
15 Q And then it says "I am entertaining a friendly
16 equity funding deal of $350,000 for 30 percent of the
17 business." Had you heard of that before?
18 A I heard something like that before.
19 Q Okay. Did you hear about it before this e-mail
20 or after this e-mail?
21 A I'm not sure.
22 Q Okay. And what was Flycast?
23 A Flycast is an advertising network.
24 Q And did you use Flycast in association with
25 trespass.net?
305
1 A Yes.
2 Q And when it says I'm entertaining a friendly
3 equity funding deal, is he referring to Josh?
4 A I would guess so.
5 Q Okay. What's Josh's last name?
6 A Kramlinger.
7 Q Okay. Did you have any discussions with Josh
8 about investing in trespass.net?
9 MR. BARRETT: objection; asked and answered.
10 THE WITNESS: I think so.
11 BY MR. BELOATE:
12 Q Okay. And what were those discussions?
13 A Clarify. What do you mean?
14 Q What kind of discussions did you have?
15 A We talked about the possibility of -- of him
16 investing in it.
17 Q Okay. Did you ever talk about the terms of the
18 investment, how much money would be needed?
19 A I recall the 350,000 figure being thrown
20 around.
21 Q Uh-huh. Anything else? Assets or anything of
22 that nature?
23 A From -- God. No, I don't remember any
24 details.
25 MR. BELOATE: Okay. All right. I will have
306
1 marked as 263.
2 (Deposition Exhibit 263 was marked for
3 identification by the court reporter.)
4 MR. BELOATE: Sorry. I don't have any copies.
5 Q Okay. 263 are several pages of Bates-stamp
6 documents 000001 to 000063.
7 A Yes.
8 Q Have you seen these documents before?
9 A Some of them, yes.
10 Q Okay. And when did you see them?
11 A Well, first one, for example, I cosigned. So I
12 must have seen it.
13 Q And what is that first check? Who is that made
14 out to?
15 A To Isaak Zelyony.
16 Q What is that for?
17 A It says Master Card charges for a dinner and a
18 lunch.
19 Q Okay. And then the second check appears to be
20 also made out to Isaak Zelyony and these are all on --
21 actually, the first check, what company name is that
22 from?
23 A Live Share.
24 Q Live Share, Incorporated?
25 A Yes.
307
1 Q And what's the date on that?
2 A July 19th, 1999.
3 Q Okay. And then if you look at Bates-stamp
4 number two, that appears to be a check to Isaak Zelyony
5 also in the amount of $3,000. Do you see that?
6 A Yes.
7 Q And what's the note?
8 A The amount is 3,000.
9 Q Is there a note on the check?
10 A It says loan repayment.
11 Q And who is this from? Is there a company name
12 on this?
13 A Company name is PTYX.
14 Q Okay.
15 A And the signer is Michael.
16 Q And then the next check is also from PTYX and
17 it also indicates a loan repayment. Do you see that?
18 A Yes. As I explained before, Michael and I both
19 did not have personal bank accounts at the time.
20 Everything we wrote checks for was written on company
21 checks.
22 Q Okay. So would you dispute that these checks
23 were made out to reimburse for loan repayment?
24 A I'm just saying I don't know if they were
25 business or personal loan repayments. I mean, the
308
1 dinner things certainly seem to be personal.
2 Q Uh-huh. Okay. If you look at Bates document
3 05, it appears to be a check to Isaak Zelyony from PTYX
4 in the amount of $5,189. Do you see that?
5 A Yes.
6 Q And that appears to also say loan repayment?
7 A Yes.
8 Q Do you see the check above that?
9 A Yes.
10 Q That also appears to say loan repayment?
11 A Correct.
12 Q Okay. Did you know Michael was writing these
13 checks to his father in repayment of loans?
14 A Some of them.
15 Q Okay. How about the one on Bates-stamp 10 in
16 the amount of $10,000?
17 A Sorry. They are not in order, are they? 10 is
18 the -- okay. I have no specific recollection.
19 Q Okay.
20 A That was in May of 2001 already and I was no
21 longer living in L.A.
22 Q Okay. If you could look at Bates-stamp 15.
23 A Yes.
24 Q Do you see check number 1680?
25 A Yes.
309
1 Q What's the date on that check?
2 A October 25th.
3 Q 1999?
4 A 1999.
5 Q And who is that made out to?
6 A Live Share, Inc.
7 Q And it appears to be in the amount of $12,000
8 and in the note it says loan?
9 A Yes.
10 Q Do you see that?
11 A Uh-huh.
12 Q And that was after I believe you testified that
13 in September you had doubts as to Live Share's
14 viability. This check was written after that; is that
15 correct?
16 A I had doubts as to the specific project that
17 Live Share was initially doing at the time.
18 Q Okay.
19 A However, as you know, then we had in September
20 started this Trespass thing or the prototype of a
21 Trespass project, which I had hopes for at the time.
22 Q Was Trespass associated with Live Share or
23 PTYX?
24 A It's hard to know because I think by then we
25 had -- we were using both bank accounts. And, as I
310
1 said, since the owners of both companies were the same
2 people and we used the same equipment and so forth, it's
3 very hard for me to say which -- which was which.
4 Q Okay. And it was your testimony earlier that
5 there was an understanding that these monies were gifts
6 if the company should not be profitable, but they were
7 loans if the companies were to be profitable; is that
8 right?
9 A Well, let me say rather than saying gifts, that
10 there was no -- well, that there was no specific
11 obligation -- I mean, we would try to repay them if we
12 could, assuming that the company did well enough.
13 Q Okay. Did your parents make any capital
14 contributions to Live Share after September?
15 A I don't know.
16 Q Okay. Did you ever tell Isaak that you were
17 concerned as to the viability of Live Share when you
18 first started feeling these concerns?
19 A Again, let me say, I -- there is -- there is
20 the project that was meant to be Live Share. There was
21 the company that was meant to be Live Share. It's -- I
22 was -- I was not sure about the future of Live Share the
23 project as in a consumer application for the Active
24 Touch technologies. However, Live Share the business
25 was doing other things as well. So as far as the
311
1 business, I was -- I would say I was not completely
2 questioning that.
3 Q So as to Live Share in October, you believed it
4 still had promise at that point?
5 A I still had hope.
6 Q You still had hope. And therefore it wasn't
7 unreasonable for Mr. Zelyony to invest $12,000 of his
8 money?
9 A I did not discuss with Mr. Zelyony or with
10 Isaak directly about any matters of investments or
11 loans.
12 Q Did you --
13 A All that was handled through Michael.
14 Q Your concerns for Live Share and how productive
15 it could be in September, did you ever have that
16 discussion with Michael and let him know that's how you
17 were feeling?
18 A I think we were not seriously working on the
19 WebEx related things by this time. So I must have
20 communicated that.
21 Q And when you say you weren't working -- we
22 weren't working on it, who was responsible primarily for
23 the technical aspect of the partnership?
24 A I mean, working on it as far as business
25 development and everything else. Not just technical.
312
1 Q Okay. Do you see Bates 14 check number 1565?
2 A Yes.
3 Q And that's written from Isaak Zelyony to PTYX
4 for $8500?
5 A Yes.
6 Q Okay. And it appears to be the same type of
7 check. So he appeared to be making a distinction
8 between PTYX and Live Share?
9 A It seems like it.
10 Q Okay. Now, I think at your previous testimony
11 you had testified that you had acquired the website Web
12 QA. Do you recall that?
13 A I don't recall testifying to that, but at some
14 point I negotiated for the -- for the purchase of that
15 domain name.
16 Q Okay. And on -- who -- whose -- who would be
17 using that web name?
18 A I was -- I purchased it on the behalf of my
19 parents.
20 Q Okay. And when did you purchase it?
21 A I don't have an exact date.
22 Q Okay. Did you make any money for doing that?
23 A I think a very small amount.
24 Q And what is a small amount of money to you?
25 A I don't remember.
313
1 Q Was it more than 1,000?
2 A I really don't remember.
3 Q Okay. So it could have been more than 1,000?
4 MR. BARRETT: objection; asked and answered.
5 BY MR. BELOATE:
6 Q You can answer if you recall.
7 Do you ever recall depositing any of the checks
8 that Michael's parents wrote for PTYX or Live Share?
9 A No, I don't.
10 Q Okay. And if you could look at Bates number
11 document 0023, check 1557.
12 A Yes.
13 Q It appears to be made out to Live Share for
14 $2,000. Do you see that?
15 A Yes.
16 Q And it's dated May 1st, 2001?
17 A Correct.
18 Q Were you still associated with PTYX at that --
19 on that date?
20 A I had no choice but to be associated according
21 to Michael.
22 Q Okay. When was the last time you made a
23 withdrawal from the PTYX account?
24 A I don't remember.
25 Q Okay. Have you made any withdrawals in the
314
1 last month?
2 A No.
3 Q In the last three months?
4 A No.
5 Q The last six months?
6 A No.
7 Q The last year?
8 A No.
9 Q Okay. Do you still have access to those
10 accounts?
11 A No.
12 Q Was PTYX -- was that partnership active in
13 April of '96?
14 A I don't know.
15 MR. BELOATE: Okay. Okay. Let's go off the
16 record for a moment.
17 THE VIDEOGRAPHER: Off the record. The time is
18 4:57.
19 (Recess.)
20 THE VIDEOGRAPHER: Back on the record. The
21 time is 5:17.
22 (Deposition Exhibit 264 was marked for
23 identification by the court reporter.)
24 BY MR. BELOATE:
25 Q Exhibit 264 is a one-page document Bates P
315
1 0236. Have you seen this document?
2 A I'm not sure.
3 Q What is this document?
4 A It appears to be an e-mail to Praful from
5 myself.
6 Q Okay. And what are you asking of him?
7 A I was asking if there's progress on activating
8 the WebEx services for Live Share.
9 Q All right. Did Praful and Subrah -- were they
10 active in forwarding this negotiation?
11 A Yes, I believe so.
12 Q Okay. In your opinion there was no time where
13 they spent more time in the negotiations than was
14 required?
15 A No.
16 MR. BARRETT: objection; calls for
17 speculation.
18 THE WITNESS: Speculation. No.
19 BY MR. BELOATE:
20 Q Okay. What would you attribute the reason why
21 you weren't able to enter into a revenue sharing
22 agreement with Active Touch?
23 MR. BARRETT: objection; calls for
24 speculation.
25 THE WITNESS: Did you say I was not able to?
316
1 BY MR. BELOATE:
2 Q Correct. I believe it's your testimony that
3 you did not enter into an agreement with Active Touch;
4 is that correct?
5 A I believe I signed a revenue sharing agreement
6 of some sort.
7 Q All right. Why do you think it took so long to
8 enter into a revenue sharing agreement?
9 MR. BARRETT: objection; calls for
10 speculation.
11 THE WITNESS: Because the whole idea of the
12 collaboration changed over time.
13 BY MR. BELOATE:
14 Q Okay. Part of that being the investment
15 falling out?
16 A Uh-huh.
17 MR. BELOATE: Okay. 265.
18 (Deposition Exhibit 265 was marked for
19 identification by the court reporter.)
20 BY MR. BELOATE:
21 Q Have you seen this document before?
22 A I am not sure.
23 Q Okay. And what is this document?
24 A It appears to be an e-mail from Michael to my
25 mother.
317
1 Q Okay. Is it also to you?
2 A Yes, it seems to be.
3 Q Okay. It makes reference to Web QA. Do you
4 see that?
5 A Yes, I do.
6 Q Did you do any consulting or development for
7 Web QA?
8 A I think we put together a proposal for it.
9 Q Okay. And who is we?
10 A Michael and myself.
11 Q So would this have been under the umbrella of
12 PTYX?
13 A I'm not sure.
14 Q Okay.
15 A Could have been PTYX. Could have been Live
16 Share.
17 Q Okay. And what was Web QA?
18 A It was going to be an online quality assurance
19 testing service.
20 Q Okay. And do you see where it says "We are
21 currently in the process of reaching over 15,000
22 webmasters with questionnaires concerning the desired
23 free and premium features of your forthcoming Web QA
24 service"?
25 A Yes.
318
1 Q Was that a true statement?
2 A I don't remember exactly, but I hope so.
3 Q Okay. Do you recall drafting a questionnaire
4 for webmasters?
5 A I think so.
6 Q Okay. Approximately how much time do you think
7 you spent developing the Web QA website?
8 A I can't really say.
9 Q Okay. Would it have been more than 40 hours?
10 A Possibly.
11 Q Okay. And Michael also helped in this project?
12 A Yes.
13 Q Okay. And what did Michael do?
14 A I can't remember exactly.
15 Q Okay. And how were you compensated for the
16 efforts you made on -- for Web QA?
17 A I think we were paid for it.
18 Q Okay. And how were you paid?
19 A I don't remember.
20 Q Okay. Was it -- and would that -- would you
21 have been paid in your consulting capacity?
22 A My?
23 Q Well --
24 A This was, as I said, both of us.
25 Q Okay.
319
1 A So it would have been paid to the company
2 somehow.
3 Q Okay. And who would it have been paid by?
4 A I don't know. I mean, I don't remember.
5 Q Could it have been paid by Active Touch?
6 A Like I said, I don't remember.
7 MR. BELOATE: Okay. All right. Exhibit 266.
8 (Deposition Exhibit 266 was marked for
9 identification by the court reporter.)
10 BY MR. BELOATE:
11 Q Exhibit 266 are several documents Bates-stamped
12 000074 to 000082.
13 A Uh-huh.
14 Q Have you seen these documents before?
15 A Probably.
16 Q Okay. And what are these documents?
17 A These are checks from my parents.
18 Q Okay. And did you produce these documents?
19 MR. BARRETT: If you don't know the answer,
20 don't answer.
21 THE WITNESS: I don't know. I don't know if
22 it's considered me producing them. I don't have those
23 checks.
24 BY MR. BELOATE:
25 Q Okay. And whose signature is on 0074? Who
320
1 signed that check?
2 A 74 is my mother.
3 Q All right. And are all these checks signed by
4 your mother?
5 A Looks like it, yes.
6 Q What does your mother do at Active Touch?
7 A I'm not sure.
8 Q Okay. Does she deal with the finances of
9 Active Touch?
10 A I'm not really sure.
11 Q Okay. What does your father do at Active
12 Touch?
13 A He is responsible -- he was the CTO.
14 Q Okay. Now, we looked at a document earlier
15 today that was a valuation of Live Share. Do you recall
16 that document?
17 A I recall an e-mail where Subrah and I discussed
18 possible investment.
19 Q Okay. And how did you come to determine what
20 the common shares would sell for?
21 A Sort of both looking at the -- how -- how other
22 companies were -- were doing at the time and hopeful --
23 you know, hopeful plans for the future.
24 Q Okay. And the assessment of the shares cost,
25 was that something that Subrah had suggested or was that
321
1 something that you had suggested?
2 A I think we -- I think we both threw numbers
3 out.
4 Q Okay. Had you ever done that previously?
5 A Throwing out numbers?
6 Q No. Try to allocate a per share value of
7 stocks.
8 A I tried to raise money before, yes.
9 Q Okay. What did you try to raise money before
10 on?
11 A I don't remember specifics.
12 Q Okay.
13 A But I know I made a couple of attempts.
14 Q In your consulting capacity, are you ever paid
15 prior to actually rendering services?
16 A Possibly as an initial deposit.
17 Q Okay.
18 A Portion of payment.
19 Q Have you ever been paid to write any technical
20 manuals?
21 A I had a couple of book contracts at a time --
22 at a certain time, yes.
23 Q Okay. And have you actually performed on those
24 contracts?
25 A No, I did not.
322
1 Q Okay. Did you return the monies?
2 A I think on one of them, yes.
3 Q Okay. And which one was that?
4 A I forget the company.
5 Q Okay. When was -- when was -- what was the
6 type of work they were requesting you do?
7 A I think write a portion of a -- of a book on
8 web administration.
9 Q Web administration?
10 A Yeah.
11 Q Okay. And what was the time frame that they
12 had asked you to do that for them?
13 A I don't remember.
14 Q Okay. Did they give you a deadline to have it
15 done in a certain amount of time?
16 A I'm not sure.
17 Q Okay. Any other jobs where you took money in
18 advance and weren't able to complete it?
19 A Possibly.
20 Q Okay. And what were those instances?
21 A I can't really say exactly right now.
22 Q Okay. Has anybody ever given you personal
23 property in lieu of services that you should render?
24 A I think I received a used car once.
25 Q Okay. What kind of car was that?
323
1 A I don't remember. I never drove it.
2 Q Okay. And what service were you supposed to
3 render?
4 A I think some sort of programing work.
5 Q Okay. And were you able to complete that
6 programing work?
7 A Not all of it, I think.
8 Q No. Did you return the car?
9 A No, I did not.
10 Q What happened to the car?
11 A I'm not sure. I think it was eventually sold.
12 Q Okay. And who obtained the money from the
13 sale?
14 A I don't remember. It was, what, ten years ago.
15 Q Okay. Could you have obtained the money from
16 the sale or was it someone else?
17 A It's possible.
18 MR. BELOATE: That's all I have.
19 MR. MILLER: I just have a couple of
20 questions.
21 MR. BELOATE: Okay.
22 EXAMINATION
23 BY MR. MILLER:
24 Q Ms. Zhu, you testified earlier today that you
25 had signed a revenue sharing agreement with Active
324
1 Touch; is that correct?
2 A I believe so based on -- I believe that I
3 signed a -- an agreement based on some e-mail
4 communications.
5 Q Okay. Do you have any -- as you sit here
6 today, do you have any actual recollection of signing
7 that agreement?
8 A Not really.
9 Q Okay. Did you ever see a copy of that
10 agreement signed by Active Touch or WebEx?
11 A I don't remember.
12 Q Okay. Do you recall what the terms of the
13 revenue split were in that agreement -- was in that
14 agreement?
15 A I think roughly 50/50.
16 Q Do you remember which party, Live Share or
17 Active Touch, possibly WebEx, was responsible for
18 collecting the revenue?
19 A I believe we were, but I'm not 100 percent
20 sure.
21 Q Okay. Did you ever collect any revenue?
22 A No.
23 Q So you never provided any revenue split to
24 Active Touch or WebEx?
25 A No.
325
1 Q Okay. Did WebEx ever refuse to provide any
2 license or operate any software that you believe it
3 promised to Live Share?
4 A I don't think so.
5 Q Did you ever give WebEx any notice that it had
6 breached any provision of any contract with Live Share?
7 A No.
8 MR. MILLER: Thank you, Ms. Zhu.
9 Nothing further.
10 FURTHER EXAMINATION
11 BY MR. BELOATE:
12 Q Okay. I just have some quick follow ups.
13 Let me ask you, Ms. Zhu, have you ever lied to
14 Michael in your capacity of a partner in PTYX?
15 MR. BARRETT: I'm going to object to that as
16 broad, vague, ambiguous.
17 THE WITNESS: I would rather not answer.
18 BY MR. BELOATE:
19 Q Okay. Have you always been truthful in your
20 business dealings with Mr. Zeleny?
21 MR. BARRETT: I'm going to object to that once
22 again as ambiguous.
23 THE WITNESS: I would rather not answer.
24 BY MR. BELOATE:
25 Q Okay. Unless your counsel instructs you, you
326
1 need to answer the question.
2 A I tried to be.
3 Q Okay. Do you remember an instance where you
4 were not completely honest with Mr. Zeleny?
5 A Depends on how you define that. There were
6 things that I wanted to do on my own apart from the
7 business that I did not necessarily inform him about.
8 Q Okay. Did you ever make statements to
9 Mr. Zeleny that would make him believe that you had, for
10 example, 1,000 accounts set up with Live Share?
11 MR. BARRETT: objection. This calls for
12 speculation, what he would believe.
13 THE WITNESS: I don't think so.
14 BY MR. BELOATE:
15 Q Okay. Did you ever tell Mr. Zeleny that
16 Zentropy and Carbon 14 were clients of Live Share?
17 A No.
18 Q Okay. So you never made those hopeful
19 statements to Mr. Zeleny?
20 A No. He knew the situation as it was.
21 MR. BELOATE: Okay. 267, I think we are.
22 (Deposition Exhibit 267 was marked for
23 identification by the court reporter.)
24 BY MR. BELOATE:
25 Q All right. Exhibit 267 is several pages
327
1 Bates-stamped P 15827 to P 15830.
2 A Uh-huh.
3 Q Have you seen this before, any of these
4 documents?
5 A Probably.
6 Q Okay. Do you have any recollection of seeing
7 any of these documents?
8 A Not exactly, but it's likely.
9 Q Okay. Do you see beginning at P 15828?
10 A Yes.
11 Q The document entitled Active Touch partnership
12 agreement?
13 A Yes.
14 Q Have you ever seen an Active Touch partnership
15 agreement?
16 A If it's what's attached, then I probably did.
17 Q Okay. And do you see where it says revenue
18 sharing?
19 A Yes.
20 Q If you could read that and see if that's terms
21 that you've negotiated previously with Active Touch?
22 A It's not.
23 Q It is not. Well, how is it different?
24 A Company agrees to pay AT up to 15,000 per
25 quarter as hosting fee, et cetera, I really don't
328
1 remember that part.
2 Q Okay.
3 A I mean, I don't see how I could have agreed to
4 that part because we were not sure of enough revenue.
5 Q How about P 15829 under Exhibit A?
6 A I mean, I think what I signed was probably
7 similar to this.
8 Q Yeah.
9 A But with some modifications as this is their
10 standard agreement.
11 Q So you did not sign a standard Active Touch
12 agreement?
13 A I don't think so. I don't see how I could have
14 signed, say, clause number five under Exhibit A about
15 paying to Active Touch by the 10th day of each month a
16 management and support fee of 12,000.
17 MR. BELOATE: Okay. All right. Thank you,
18 Ms. Zhu.
19 THE WITNESS: Okay. Anything else?
20 THE VIDEOGRAPHER: This concludes today's
21 proceeding in the deposition of Erin Zhu. Off the
22 record. The time is 5:36 p.m.
23 //
24 //
25
329
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2
3
4
5
6
7
8
9 I, ERIN ZHU, do hereby declare under penalty of
10 perjury that I have read the foregoing transcript of my
11 deposition; that I have made such corrections as noted
12 herein, in ink, initialed by me, or attached hereto;
13 that my testimony as contained herein, as corrected, is
14 true and correct.
15 EXECUTED this ___ day of _____________________,
16 2004, at __________________________, ________________.
(City) (State)
17
18
19
20
21
22 _____________________________________
ERIN ZHU
23
24
25
330
1
2
3 I, the undersigned, a Certified Shorthand
4 Reporter of the State of California, do hereby certify:
5 That the foregoing proceedings were taken
6 before me at the time and place herein set forth; that
7 any witnesses in the foregoing proceedings, prior to
8 testifying, were placed under oath; that a verbatim
9 record of the proceedings was made by me using machine
10 shorthand which was thereafter transcribed under my
11 direction; further, that the foregoing is an accurate
12 transcription thereof.
13 I further certify that I am neither financially
14 interested in the action nor a relative or employee of
15 any attorney of any of the parties.
16 IN WITNESS WHEREOF, I have this date subscribed
17 my name.
18
19 Dated: __________________________
20
21
22 __________________________________________
HEATHER M. COLLEY
23 CSR No. 10693
24
25
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作者：spiderman 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
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