Free Declaration in Support - District Court of California - California

Case 3:08-mc-80129-SI

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DAVID H. KRAMER, State Bar No. 168452, [email protected] MICHAEL H. RUBIN, State Bar No. 214636, [email protected] WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Attorneys for Non-Party Respondents Artis Capital Management, L.P., Sequoia Capital Operations LLC and TriplePoint Capital LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION VIACOM INTERNATIONAL INC., ET AL. Plaintiffs, v. YOUTUBE, INC., ET AL. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 3:08-MC-80129-SI [Case No. 07-cv-02103 (LLS) in the U.S. D.C., S.D.N.Y] DECLARATION OF KEVIN W. THORNE IN SUPPORT OF RESPONDENTS' OPPOSITION TO PLAINTIFFS' JOINT MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS TO ARTIS CAPITAL MANAGEMENT L.P., SEQUOIA CAPITAL OPERATIONS LLC, AND TRIPLEPOINT CAPITAL LLC [Case No. 07-cv-03532 (LLS) in the U.S. D.C., S.D.N.Y] Date: Time: Courtroom: Judge: August 15, 2008 9:00 a.m. 10 Honorable Susan Illston

THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED, ET AL. Plaintiffs,

22 v. 23 YOUTUBE, INC., ET AL. 24 Defendants. 25 26 27 28 I, Kevin W. Thorne, hereby declare that: 1.

I am the Senior Vice President of Compliance & Legal Administration for non-

party TriplePoint Capital LLC ("TriplePoint"). I submit this declaration in support of
THORNE DECLARATION ISO OPPOSITION TO MOTION TO COMPEL CASE NO. 08-MC-80129 (SI)

Case 3:08-mc-80129-SI

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Respondents' Opposition to Plaintiffs' Joint Motion to Compel Production of Documents Pursuant to Subpoenas to Artis Capital Management L.P., Sequoia Capital Operations LLC, and TriplePoint Capital LLC. I have personal knowledge about the facts described below and if called upon to testify, could competently testify to them. 2. TriplePoint is a debt and equipment financier that has provided financing to

hundreds of startups. 3. TriplePoint first considered providing equipment financing to YouTube in

approximately January 2006. TriplePoint had no involvement with the company prior to that date. 4. On April 5, 2006, TriplePoint and YouTube entered into a standard equipment

Loan and Security agreement, which allowed YouTube to purchase third party, off-the-shelf equipment, including computer servers. Under the terms of that agreement, YouTube made all decisions with regard to how to spend the funds, purchasing equipment that met the definition of equipment under the Loan and Security Agreement. For that portion of the transaction that was a loan, TriplePoint took a security interest in the equipment that YouTube purchased. 5. Also on April 5, 2006, TriplePoint and YouTube entered into a Plain English

Warrant Agreement, which entitled TriplePoint to purchase a certain number of shares of YouTube at TriplePoint's option. 6. On August 24, 2006, TriplePoint and YouTube entered into a Master Lease

Agreement, pursuant to which TriplePoint will retain ownership of the equipment used by YouTube until, upon termination of the lease, YouTube purchases, returns or re-leases the equipment. In connection with this lease agreement, TriplePoint and YouTube entered into another Warrant Agreement, which also granted TriplePoint the right to purchase certain shares of YouTube stock at TriplePoint's option. 7. TriplePoint exercised no control over, and did not participate in, the business

strategies or decisions of YouTube. 8. The loan, lease, and warrant agreements with YouTube included a term requiring

YouTube to inform TriplePoint of any proposed merger or sale or conveyance of all of
THORNE DECLARATION ISO OPPOSITION TO MOTION TO COMPEL CASE NO. 08-MC-80129 (SI)

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