Case 5:00-cv-20905-RMW Document 3944-2 Filed 05/01/2009 Page 1 of 13

EXHIBIT A
SUBMITTED
UNDER SEAL
 Case 5:00-cv-20905-RMW Document 3944-2 Filed 05/01/2009 Page 2 of 13

1 Gregory P. Stone (SBN 078329) Rollin A. Ransom (SBN 196126)

Andrea Weiss Jeffries (SBN 183408) SIDLEY AUSTIN LLP
2 Fred A. Rowley, Jr. (SBN 192298) 555 West Fifth Street, Suite 4000
MUNGER, TOLLES & OLSON LLP Los Angeles, CA 90013-1010
3 355 South Grand Avenue, 35th Floor Telephone: (213) 896-6000
Los Angeles, CA 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com Pierre J. Hubert (Pro Hac Vice)
Email: andrea.jeffries@mto.com Craig N. Tolliver (Pro Hac Vice)
6 Email: fred.rowley@mto.com MCKOOL SMITH PC
300 West 6th Street, Suite 1700
7 Peter A. Detre (SBN 182619) Austin, TX 78701
Carolyn Hoecker Luedtke (SBN 207976) Telephone: (512) 692-8700
8 Rosemarie T. Ring (SBN 220769) Facsimile: (512) 692-8744
Jennifer L. Polse (SBN 219202) Email: phubert@mckoolsmith.com
9 MUNGER, TOLLES & OLSON LLP Email: ctolliver@mckoolsmith.com
560 Mission Street, 27th Floor
10 San Francisco, CA 94105-2907
Telephone: (415) 512-4000
11 Facsimile: (415) 512-4077
Email: peter.detre@mto.com
12 Email: carolyn.luedtke@mto.com
Email: rose.ring@mto.com
13 Email: jen.polse@mto.com
14 Attorneys for RAMBUS INC.
15

16 UNITED STATES DISTRICT COURT

17 NORTHERN DISTRICT OF CALIFORNIA

18 SAN JOSE DIVISION

19

20 HYNIX SEMICONDUCTOR, INC., et al., CASE NO. CV 00-20905 RMW

21 Plaintiffs, MANUAL FILING NOTIFICATION

22 vs.
Judge: Honorable Ronald M. Whyte
23 RAMBUS INC., Ctrm: 6

24 Defendant.

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MANUAL FILING NOTIFICATION;
7721505.1
CASE NO. 00-20905 RMW
 Case 5:00-cv-20905-RMW Document 3944-2 Filed 05/01/2009 Page 3 of 13

1 FILED UNDER SEAL

2 MANUAL FILING NOTIFICATION
3 Regarding:
4 y Surreply of Rambus Inc. in Opposition to Hynix’s Motion for Stay of Execution of
5 Money Judgment and for Permission to Post Alternative Security;
6 This filing is in paper or physical form only, and is being maintained in the Clerk’s office.
7 If you are a participant in this case, this filing will be served in hard-copy shortly. For
8 information in retrieving this filing directly from the court, please see the court’s main web site at
9 http://www.cand.uscourts.gov under Frequently Asked Questions (FAQ).
10 This filing was not efiled for the following reason: Item Under Seal.
11

12 DATED: May 1, 2009 MUNGER, TOLLES & OLSON LLP

13 SIDLEY AUSTIN LLP
14 McKOOL SMITH PC
15

16
By: /s/ Jeffrey Y. Wu
17 Jeffrey Y. Wu
18 Attorneys for RAMBUS INC.
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MANUAL FILING NOTIFICATION;
7721505.1 -1- CASE NO. 00-20905 RMW
 Case 5:00-cv-20905-RMW Document 3944-2 Filed 05/01/2009 Page 4 of 13

1 Gregory P. Stone (SBN 078329) Rollin A. Ransom (SBN 196126)

Andrea Weiss Jeffries (SBN 183408) SIDLEY AUSTIN LLP
2 Fred A. Rowley, Jr. (SBN 192298) 555 West Fifth Street, Suite 4000
MUNGER, TOLLES & OLSON LLP Los Angeles, CA 90013-1010
3 355 South Grand Avenue, 35th Floor Telephone: (213) 896-6000
Los Angeles, CA 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com Pierre J. Hubert (Pro Hac Vice)
Email: andrea.jeffries@mto.com Craig N. Tolliver (Pro Hac Vice)
6 Email: fred.rowley@mto.com McKOOL SMITH PC
300 West 6th Street, Suite 1700
7 Peter A. Detre (SBN 182619) Austin, TX 78701
Carolyn Hoecker Luedtke (SBN 207976) Telephone: (512) 692-8700
8 Rosemarie T. Ring (SBN 220769) Facsimile: (512) 692-8744
Jennifer L. Polse (SBN 219202) Email: phubert@mckoolsmith.com
9 MUNGER, TOLLES & OLSON LLP Email: ctolliver@mckoolsmith.com
560 Mission Street, 27th Floor
10 San Francisco, CA 94105
Telephone: (415) 512-4000
11 Facsimile: (415) 512-4077
Email: peter.detre@mto.com
12 Email: carolyn.luedtke@mto.com
Email: rose.ring@mto.com
13 Email: jen.polse@mto.com
14 Attorneys for RAMBUS INC.
15 UNITED STATES DISTRICT COURT
16 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
17

18 HYNIX SEMICONDUCTOR, INC., et al., CASE NO.: CV 00-20905 RMW

19 Plaintiffs, SURREPLY OF RAMBUS INC. IN
OPPOSITION TO HYNIX’S MOTION FOR
20 vs. STAY OF EXECUTION OF MONEY
JUDGMENT AND FOR PERMISSION TO
21 RAMBUS INC., POST ALTERNATIVE SECURITY
22 Defendant. Date: May 8, 2009
Time: 2:00 p.m.
23 Ctrm: 6
Judge: Hon. Ronald M. Whyte
24
PUBLIC REDACTED VERSION
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RAMBUS’S SURREPLY TO HYNIX’S MOTION FOR
STAY OF EXECUTION OF MONEY JUDGMENT
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1 I. INTRODUCTION
2 Rambus submits this surreply to address two issues that it could not have addressed in its

3 opposition brief: (1) new developments and disclosures that have occurred since Rambus filed its

4 opposition, and which further refute Hynix’s claim that it cannot afford a bond; and (2) Hynix’s

5 submission of additional “evidence” on reply that either was omitted from, or is inconsistent with,

6 Hynix’s opening papers. Review of this new material confirms that Hynix has not met, and

7 cannot satisfy, its burden of establishing that posting a full bond would be impracticable.

8 First, recent developments and disclosures reveal that since Rambus filed its opposition,

9 and even since Hynix filed its reply, Hynix’s sources of capital and financing have continued to

10 multiply. In just the past two weeks, Hynix (1) received formal approval for over $960 million in

11 new debt and equity financing; (2) revealed in its latest earnings release that its cash balance

12 increased by over $100 million; (3) announced in an earnings call that its creditors have

13 reaffirmed $1.7 billion in short-term credit lines; and (4) reportedly entered final negotiations to

14 sell equipment for over $360 million. (See Jacobs Supp. Decl. at ¶¶ 6, 8, 11, 20; 1 see also Wu

15 Decl. Ex. A (Thomson Reuters, Hynix to Get $965 Mln in New Funds, Apr. 22, 2009), Ex. B

16 (Hynix Semiconductor Fy2009 Q1 Earnings Release, Apr. 24, 2009, at 5), Ex. C (LexisNexis, Q1

17 2009 Hynix Semiconductor Inc. Earnings Conference Call Transcript, Apr. 23, 2009, at 5), and

18 Ex. D (The Chosun IIbo, Hynix Selling Off Unused Machinery to Beat Slump, Apr. 29, 2009). 2 )

19 This new capital and other financing conclusively demonstrates that Hynix has the means to

20 secure the entire amount of the judgment plus interest.

21

22 Hynix’s reply papers are marked by the same careful wording and

23 contradiction that pervaded its moving papers.

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27 1
Supplemental Declaration of E. Allen Jacobs in Support of Surreply, May 1, 2009.
2
28 Declaration of Jerrey Y. Wu in Support of Surreply, May 1, 2009.
RAMBUS’S SURREPLY TO HYNIX’S MOTION FOR
-1- STAY OF EXECUTION OF MONEY JUDGMENT;
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3 The Court should enforce Rule 62 and hold Hynix to its obligation to post a full bond.
4

8 Hynix simply does not want to pay.

9 II. ARGUMENT

10 A. Hynix’s Supplemental Submission Fails to Show Either That It Has

Reasonably Exhausted Its Bond Alternatives
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12
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14 coupled with Hynix’s ongoing announcements of new

15 financing and improved future prospects, undercuts Hynix’s request for extraordinary relief. Cf.

16 HCB Contractors v. Rouse & Assocs., 168 F.R.D. 508, 512 (E.D. Pa. 1995).

17 1.

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The State of Hynix’s Business and the DRAM Industry:
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just last week Hynix
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told investors that “we are currently passing through the inflection point of memory industry
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cycle,” and that “memory market dynamics are improving.” (Wu Decl. Ex. C at 3, 12.) Hynix
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RAMBUS’S SURREPLY TO HYNIX’S MOTION FOR
-2- STAY OF EXECUTION OF MONEY JUDGMENT
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1 also reiterated that it is investing aggressively in new technology to enhance its competitive
2 position. (Id. at 3.) These predictions resonate with Rambus’s evidence—unrebutted by Hynix—
3 showing that conditions in the DRAM industry are improving, and that Hynix is poised to emerge
4 as a dominant DRAM manufacturer. (Opp’n at 4-5, 7-8; Jacobs Supp. Decl. ¶¶ 18-21; see also
5 Wu Decl. Ex. C at 2, 5.)
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12 Equity Offering:
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16 On April 22, 2009, Hynix announced

17 that its leading creditors and shareholders approved over $960 million in new liquidity, with
18 $519.5 million in new shares and the remainder in debt. (Jacobs Supp. Decl. at ¶¶ 6, 8, 11; see
19 also Wu Decl. Ex. A.) This unequivocal vote of confidence in Hynix’s future by the financial
20 community and Hynix’s current owners and lenders speaks volumes.
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1 Credit Offering:
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5 This argument is unavailing—both legally and factually.

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13 Second and relatedly, the judgment against

14 Hynix is already a liability affecting any financial analysis of Hynix and its balance sheet. (Id.;
15 see also Wu Decl. Ex. C at 3 (stating that “we have already made additional provisions” to
16 reflect this Court’s judgment).) By obtaining a bond, Hynix would merely shift the liability to a
17 surety and away from Rambus (and bear the attendant servicing costs). 3
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1 This
2 infusion of capital came on the heels of the $376 million debt offering made in January 2009.
3 (Roh 3/24/09 Decl. ¶ 19.)
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20 Cash Equivalents:
21 In addition to the financing
22 set out above, the company recently reported a $130+ million increase in cash and cash
23 equivalents. (Jacobs Supp. Decl. at ¶ 20; see also Wu Decl. Ex. B, at 5.) And just this week, the
24 press reported that Hynix is in negotiations to sell $369 million in equipment from its Incheon
25 plant,
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-5- STAY OF EXECUTION OF MONEY JUDGMENT
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4 As Dr. Jacobs has confirmed, several sureties would be willing to accept cash to issue
5 supersedeas bonds of the size Hynix needs (Jacobs Supp. Decl. at ¶ 3).
6 2. Hynix Has Not Demonstrated Diligence in Obtaining a Bond
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14 The omission is critical, not only

15 because Hynix bears the burden here, but also because the burden it must bear is to show that a
16 full bond is impracticable. Nor can Hynix avoid this shortcoming by questioning whether
17 Rambus’s expert, Dr. Jacobs, was able to find a surety willing to issue a $400 million bond.
18 (Reply at 4.) That responsibility belongs solely to Hynix, though the fact that Dr. Jacobs was able
19 to find sureties capable of issuing such a bond (Jacobs Supp. Decl. at ¶ 3) casts serious doubt on
20 the thoroughness and sincerity of Hynix’s efforts.
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RAMBUS’S SURREPLY TO HYNIX’S MOTION FOR
-6- STAY OF EXECUTION OF MONEY JUDGMENT
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9 Taken together with Hynix’s capital-raising run, this lack

10 of effort indicates that Hynix simply does not want to ask sureties or banks the price and forms of
11 a full bond because it would rather spend the money elsewhere.
12 B. Hynix’s Major Shareholders Continue to Infuse Hynix with Capital and
Financing,
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The key assumption underlying this argument is that the SMC is an independent
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gatekeeper, As Hynix
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itself acknowledges, however, the SMC is not an arm’s-length group of banks and lenders, but
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rather the collective owner of 31.8% of the company. (Reply at 7 n.2; Jacobs Supp. Decl. at ¶ 7.)
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One of its members, the Korean Exchange Bank, is both Hynix’s single largest shareholder and
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the institution that announced Hynix’s latest round of $960 million in financing. (Jacobs Supp.
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Decl. at ¶ 8; see also Wu Decl. Ex. A, Ex. E (Softpedia.com, Hynix to Cut Jobs, Dec. 8, 2008).)
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Because the SMC has a substantial stake in, and control over, Hynix, the decision to
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pursue financing for a full bond is closer to an intra-corporate decision about how best to use
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RAMBUS’S SURREPLY TO HYNIX’S MOTION FOR
-7- STAY OF EXECUTION OF MONEY JUDGMENT
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1 Hynix’s resources than it is to a determination by an outside financial institution about the risk of
2 guaranteeing its debts. (See Jacobs Supp. Decl. at ¶¶ 9, 18.)
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13 If the
14 fact that a judgment debtor preferred to invest its money rather than pay the judgments against it
15 were enough to avoid a bond, Rule 62 would be a nullity.
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20 III. CONCLUSION

21 The Court should reject Hynix’s motion, and direct it to post a full bond in accordance

22 with Rule 62.

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1 DATED: May 1, 2009 MUNGER, TOLLES & OLSON LLP

SIDLEY AUSTIN LLP
2 McKOOL SMITH P.C.
3

4 By: /s/ Gregory P. Stone

GREGORY P. STONE
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Attorneys for RAMBUS INC.
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