Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:05-cv—O0762-SLR Document 80-16 Filed O1/17/2007 Page 1 014
EXHIBIT “J”

Case 1 :05-cv—OO762-SLR Document 80-16 Filed O1/17/2007 Page 2 of 4
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Lino, Guy
From: Ltpo, Guy
Sent: Thursday, November io, 2005 4:19 PM
To: ‘kap%[email protected]‘
Cc: 'satmde:·[email protected]’
Subiactc RE: At—Cep v.Congo & CMS
Ken,
This email will supplement the email below sent to you on October 30, 2066.
Aa stated in my October 30 email, CMS Nomeoo contemplates a transaction that would result io CMS
Nomeco owning, directly or indirectly, 1GO% ofthe stock of the company that would own the Yombo
Field working interest on o go-forward basis. CMS Nomeco has now determined that prior to soot: a
tranafer of tho working interest, CMS Nomeoo will convert to a rion—Delaware entity. Of course, CMS
Nomeco will not use that oooversion as a basis for challenging the jurisdiction of the federal court in
Delaware to resolve the issues axisiiog out of the gamislament writ served in October 21305 that are .
scheduled to be tried in July 2007.
Regards,
Guy
From: Lipe, Guy
Sent: Monday, October 30, 2006 4:23 PM
To: kaplank@gt§aw.com
Cc: samderss@gt|ow.com
Subject: RE: Af·Cap viloogo & CMS
Ken,
This is in response to your email of Friday.
I will first address your motion to substitute. As I mentioned in our brief discussion iu Austin, it is my
current understanding that Af——Cap actually acquireé an interest in the debt prior to the FDIC transaction
that is referenced in your motion. Laura Klaus argued before the Fifth Circuit in June of this year that
the fact that At`—Cap acquired the debt from the '*U.S. govemm.ont" should have some legal sigmticaoce.
In light of those facts, the details of Af-CIap’s acquisition of an interest in the debt, independent of the
FMC transaction, am relevant to Af-Capts mguroents in the Delaware litigation. Since your mooon is
basecl on the FDIC transaction, ancl since you have provided no facts ooo coming any interest that Af-
Cap may have acquired in the debt prioi to the FDIC transaction, we will oppose you; motion, pending
discovery 0:1 the underlying facts.
With regard to your request that CMS Nomoco "im$`ormally*' provide you with thirty days ootice of a
transaction involving CMS Nomecds own property, 1.::,: its working interest in the Congoiese oil
concession, CMS Nomeco declines that request. Af-Cap me oo right to iateifooe with CMS Nomecds
actions concerning its own property interests in the Congo, and CMS Nomeco has no legal obligation to
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either provide Af-Cap with information consenting its intended actions with regard te its own preptmy
interests in the Ccmge or te defer amy such actions. CMS Nemece will vigorously oppose any attempt by
Af-Cap to interfere with CMS Numecrfs legitimate exercise of its right to ccméuct its own business
affairs with regard to its own assets.
Notwithstanding the lack of any such obligations 01:1 CMS Ncrme<;0‘s part, CMS Nomsce has authorized
me to infemt you that the transaction that it contemplates is one that would result in CMS Nrzrmece
owning, directly mr indirectly, I00% of the stock ofthe company that would own the working interest 011
a g0·»t`01·weu·d basis.
Regards,
Guy Lipe
Frerm kalpriarrlt wferrt { attterteptert tlisw co him n an l W hul llll U ` in l i H H H nnl A M M n
Sent: Friday, OCtOb€T 2?, 2005 8:03 AM
T0: Lips, Guy
Cc: sau¤[email protected]
Subject: Af~Cep v.C0ng0 & CMS
Guy:
Further to our ctrrtversatiert Monday in Austin, attached please tirrd the fottcwirtg,
1. at-Caps Urieppesect ivtcrtien to Substitute tiled in the Western District Action. Exhibit A is
the Motion snows that the FDIC transferred its right, title and interest in the itrdgmertt to At-Cap
srt September 3, 2002.
2. Merton to Substitute that we propose te t En the D. Deiaware action. As you can see,
the Mettert is identical to the on filed in the WD. Texas action and rettes upon the same
tecttrat evidence ter its basis to sutrstttute. We trust, therefore, that GMS witt take the same
position es betere and net eppeee Ar»C—ap's Motion to Substitute.
Kindly provide us your position err the Detaware motion to substittrte by 5:GO pm. east ccest
time cm Monday, October 30, 20GB.
Separately, we understand that Judge Eiitsen has ittteci the requirement that CMS provide
rretice prter te removing its assets sutsirte the United States smh that it weuid potentially
remove the assets tram the jurisdiction or the pending creditor actions. Previeusty, GMS tres
provided mixed signals regarding the status et the transaction end, based err our recercts, East
reported te the Southern District that the deal te transfer assets was not complete. Given
the pertdirtg litigation Err Deiaware, and the engeirag action inthe Western District ef Texas errct
the Fifth Circuit, we request are update en the status of the transaction. Further, we request
that you actvtse us at teest thirty days prior to such transaction cncccurrtng. We weutci prefer that
you preside this tntermatten te us intermetiy in ertzier to avoid unnecessary tegat proceedings
es we contend that the transfer is improper arrct knewingty designed te frustrate tree Oranges
creditors. Atternativeiy, we will seek expedited discovery t0 obtain an answer. Thank you, ire
edvance, ter your cooperation en this matter.
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Should you have any questions, please do not hesitate to contact us.
Sincerely,
Ken
Ken meth P. Kaplan
Greenberg iraurig LLP
EGE} Connecticut Avenue: NW., Suite EGG
Washington, DC 20035
(202} 331.3191 {O)
(202} 26i .0155 {F)
(2G2} 441 .9753 {M)
ka pla nl<@gtlaw.com
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li'] 2/2007