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| The Novell-SCO 1995 Asset Purchase Agreement |
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Monday, November 03 2003 @ 08:58 AM EST
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Here is the Novell-SCO Asset Purchase Agreement, as PDF. We are working on a text version. Keep in mind that SCO claimed back in early June that a paralegal had found an amendment to this agreement: "The company said it has uncovered a 1996 amendment to the contract under which Novell sold many of its Unix assets--which appears to give SCO claim to at least some Unix copyrights.
"The amendment seems to reverse a provision in the original 1995 asset transfer agreement under which Novell sold much of the Unix business to SCO's predecessor, the Santa Cruz Operation. That sale specifically excluded copyrights from the transfer. The amendment modifies this exclusion, so that SCO seems to receive at least some Unix copyrights." I have been waiting for that document to show up in the discovery process or as an exhibit, but unless I've missed it, so far I haven't seen hide nor hair of it, which seems odd. Time will tell. I mention it, because this document, while a bit unclear, tips away from SCO, but if there really is an authentic amendment, it could change the picture.
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| Authored by: Anonymous on Monday, November 03 2003 @ 09:25 AM EST |
| Tut Group UNIX
Onwership study [ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 09:31 AM EST |
From the news.com article regarding the amendment:
"SCO plans to detail the amended filing and its implications in a news
conference Friday."
Yeahh right. Many moons has passed since that Friday...[ Reply to This | # ]
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| Authored by: Thomas Frayne on Monday, November 03 2003 @ 09:46 AM EST |
| Did IBM ask for the amendment in its intererogatory? [ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 09:54 AM EST |
I wonder when IBM is going to ask for amentment 2 from SCO. Could it be part of
the third round of interrogatories they've just sent SCO?
They should ask for amendment 1 as well ... SCO claims it got nothig to do with
the case, but any amendment of the purchase agreement could be relevant to the
case.
I should be quite easy to verify the authenticity of those documents, by
questioning the people who signed it.
While it may be 100% authentic documents (SCO have enough holes in their case
already, so we don't really need this), SCO's fall would be much more
spectacular if it isn't ... the fact that Novell was not aware of this
amendment, and the way it was found, doesn't really smell right.
[ Reply to This | # ]
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- I wonder ... - Authored by: rand on Monday, November 03 2003 @ 02:08 PM EST
- I wonder ... - Authored by: ktaute on Monday, November 03 2003 @ 03:17 PM EST
- However... - Authored by: Anonymous on Monday, November 03 2003 @ 08:12 PM EST
- Not so ... - Authored by: CCourt on Tuesday, November 04 2003 @ 12:29 AM EST
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| Authored by: Kelledin on Monday, November 03 2003 @ 10:01 AM EST |
Just so I confirm my feeling on this, how likely is it that the mystery APA
amendment is a forgery?
1) Novell apparently never heard of the
amendment. All they can say
is, "it seems to be authentic, but we don't have
a copy of it ourselves, or any
record of ever signing it." Did Novell even
get a chance to do real analysis
of the amendment?
2) The
amendment got "discovered" in the bottom of a filing cabinet
shortly after
Novell slapped SCO around a bit with the APA. Clearly SCO
didn't have it on
hand immediately, else they'd have immediately used it to
cover certain
unmentionable body parts once Novell pointed out SCO's lack
of pants. What did
SCO think they were doing before they found it, shooting
clay pigeons?
Building a bypass through Arthur Dent's house? >:D
3) AFAIK SCO
hasn't actually produced the mystery amendment, either
in public or in court.
If it exists, it ought to be attached to SCO's affirmative
defense filing as
an exhibit, shouldn't it? I don't recall seeing it, or any
reference to it.
Good luck getting it entered into evidence later, SCO! :-p
[ Reply to This | # ]
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| Authored by: Alan Bell on Monday, November 03 2003 @ 10:57 AM EST |
that is one nasty looking document from the point of view of an OCR program. How
about some distributed typing, post 62 numbered comments (one per page) then we
can post a comment "claiming" a page then a comment with the typed
up text of the page. Others can then post proof reading comments and finally
someone can scoop it all up into one document.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 11:50 AM EST |
| Here is the text of Paragraph 4.16 (b). It appears to give Novell the right to
tell SCO what to do with respect to the licenses it administers: unless this has
been modified by an amendment, it seems to me that IBM still has Unix licenses
to back up distribution and development of AIX and Dynix, because Novell told
them so.
4.16 SVRX Licenses
(b) Buyer shall
not, and shall not have the authority to, amend, modify or waive any right under
or assign any SVRX License without the prior written consent of Seller. In
addition, at Seller's sole discretion and direction, Buyer shall amend,
supplement, modify or waive any rights under, or shall assign any rights to, any
SVRX License to the extent so directed in any manner or respect by Seller. In
the event that Buyer shall fail to take any such action concerning the SVRX
Licenses as required herein, Seller shall be authorized, and hereby is granted,
the rights to take any action on Buyer's own behalf. Buyer shall not, and shall
have no right to, enter into future licenses or amendments of the SVRX Licenses,
except as may be incidently involved through its rights to sell and license the
Assets or the Merged Product (as such term is defined in the proposed Operating
Agreement, attached hereto as exhibit 5.1(c)) or future versions thereof of the
Merged Product.
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| Authored by: minkwe on Monday, November 03 2003 @ 12:13 PM EST |
If Novell thinks the discovered amendment appeared to be genuine, they must have
had an opportunity to see it before saying that.
If they saw it, and still went ahead to exercise their rights under the original
agreement, then the amendment does not have anything to do with the rights they
exercised.
To conclude, with or without an amendment, SCO still finds themselves holding
the 'bottled imp'. The amendment has to do with just copyrights but that does
not even come up in SCO's claims.
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| Authored by: Anonymous on Monday, November 03 2003 @ 01:13 PM EST |
This is too funny: 8-)
Bad news comes out on Nov 3, about IBM Subpoenas to SCO pumpers, and SCO issues
a press release to a VARBusiness Annual Report Card (ARC), published on or about
Oct 8, as trumpeting SCO as some great bastion of enterprise operating systems.
http://www.varbusiness.com/sections/main/2003arc.asp
What SCO neglected to put in their press release is that they also made the
"ARC Hall of Shame."
h++p://www.varbusiness.com/sections/columns/columns.asp?ArticleID=44952
Here's a quote from the column:
<QUOTE>
SCO should apply some of the money it's shelling out in legal fees in its suit
against IBM and Linux users to its channel efforts. The company's ARC scores
were a train wreck in the enterprise operating systems category. Who cares what
line of code is buried inside some obscure Linux program that can trace its
roots to IBM's Unix license dating back to the Partridge Family? SCO partners
clearly don't appreciate the company's products. And if the folks at Sun who
make and market Solaris are laughing, they had better stop--their scores were
even worse.
<ENDQUOTE>[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 03:41 PM EST |
Buyer shall not, and shall not have the authority to, amend, modify or waive
any right under or assign any SVRX License without the prior written consent of
Seller.
Can SCO Group assign the contract to Canopy (or
whoever)?
How did Original SCO assign the contract to Caldera
(presumably SCO consented)?
What about Canopy's secured loan? Even if
paid off now, at the time, was it predicated on them being assigned the
licenses in the event of default by SCO?
IANAL, I don't know or pretend
to know the answers to any of the above - but it seems like it's worth asking
the question / investigating, right ?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 04:15 PM EST |
However, for SCO to bring copyright-based lawsuits against Linux users, SCO
would have to show that the copyright transfers have been registered at the U.S.
Copyright Office, Ferrell said.
----->
Is there any way we can find that agreement via the Copyright Office?
Furthermore, under the agreement, would SCO still be bound by Novell in that
Novell can force them to do all kinds of things with respect to the contract
among Novell, IBM and SCO; e.g. waive some of the claims vs. IBM as Novell told
SCO to not so long ago?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 07:55 PM EST |
Off-topic but fun,
IBM's corporate songs
http://www-1.ibm.com/ibm/history/exhibits/music/pdf/SB1.pdf[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 08:06 PM EST |
A work in progress... McBride's biographical
info
EDUCATION
McBride holds a Bachelor of Science
degree from Brigham Young University and received a Masters degree from the
University of Illinois at Urbana-Champaign.
Source: http://www.caldera.com
/company/execs/dmcbride.html
1988 to 1996 -
Novell
"From 1988 to 1996, he worked at networking leader Novell where
he was responsible for growing Novell Japan's growth to more than $100
million in revenue. He concluded his tenure at Novell as vice president and
general manager of Novell's Embedded Systems Division (NEST). "
Source:
http://www.caldera.com
/company/execs/dmcbride.html
February 1996 to ? - IKON
Office Solutions, Inc.
"senior VP of technical services" for some or
all of his time their
July 1997 - McBride/article talks about big plans
for IKON, acquisitions, and IKON failing to meet analysts'
expectations
Source:
http://www.informationweek
.com/638/38iuikn.htm
October 1997 - McBride sues IKON while still
working there:
Source: http://th
ecopiernetwork.com/forums/roadhouse3/messages/589.html
"claiming
that the company failed to provide a performance-based pay plan for IKON's
Technology Services"
"The suit, which also claims defamation, names
IKON's chairman and chief executive officer, John Stuart, as a defendant"
"...McBride will continue to work at IKON"
Incidentally
Sean Wilson - more on him later, served here, during some of same time period as
McBride.
1999 to 2000 -
PointServe
CEO
Source http://www.shareholder.com/Common/Edgar/1102542/1047469-03-7344/03-00.pdf
(page 3)
2000 to 2002 - SBI and Company (note: also
serving in FranklinPlanner - see below)
Chairmain and
CEO
Source http://www.shareholder.com/Common/Edgar/1102542/1047469-03-7344/03-00.pdf
(page 3)SBI and Company
May 2000 to May 2002 -
FranklinPlanner.com
Source http://www.shareholder.com/Common/Edgar/1102542/1047469-03-7344/03-00.pdf
(page 3)
2000 August 2nd
Source:
http://www.franklincovey.com/about/press/2000/press_franklinplanner.html
FranklinCovey announced today it has formed
FranklinPlanner.com, a new subsidiary created to deliver the Franklin Planning
System over the Internet.
...
FranklinCovey also announced the
appointment of Darl McBride as president of FranklinPlanner.com. McBride, a
senior executive at Novell for eight years, founder and CEO of SolutionBank, and
more recently CEO of PointServe, has been listed as one of the "Top Twenty
Executives to Watch" by Computer Reseller News.
In 2002,
FranklinCovey terminates the FranklinPlanner.com business, after apparently
generating absolutely no sales>, during all of 2000, 2001 and 2002 (i.e.
during entire history of FranklinPlanner.com - according to the Termination
section in following Franklin Covey SEC filing).
Source: http://www.sec.gov/Archives/edgar/data/886206/000088620602000048/fy02_10k.h
tm
Incidentally, Sean Wilson, more on him later, served at
Franklin Covey (who owned FranklinPlanner.com as wholly own subsiduary) for an
overlapping time period with McBride's period at
FranklinPlanner.com.
June 2002 on - CEO of Caldera (later
renamed SCO)
(well documented)
Source: http://www.shareholder.com/Common/Edgar/1102542/1047469-03-7344/03-00.pdf
(page 3 of PDF)
2002 (?) on - Director of Calixus Networks,
Inc.
He appears on this page, which mentions his position at SCO, and
has copyright year 2002:
http://www.calixus.com/html2/c
o_team.shtml
However this page http://www.calixus.com/html2/
co_press.shtml also copyright 2002, links to McBride's appointment at SCO
and sort of implies he was already a Director of Calixus before joining SCO
"Calixus Director, Darl McBride named CEO of SCO
(Caldera)"/
SEAN WILSON
Sean Wilson, also on
SCO's board since June 2002 (same start time as McBride) served at Franklin
Covey (where McBride served for FranklinPlanner.com subsiduary) September 2000
to May 2002 (same time to leave as McBride) 1996 - and IKON from 1996 to
September 2000 (overlapping with McBride's time there) - and at Novell prior to
1996 (like McBride)
Source: http://www.shareholder.com/Common/Edgar/1102542/1047469-03-7344/03-00.pdf
page 5 of PDF[ Reply to This | # ]
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| Authored by: roxyb on Monday, November 03 2003 @ 09:07 PM EST |
| Found the follwoing in an old SCO FAQ:
Q: What's the LKP that'll be in
Open Unix 8?
A: One of the main features of Caldera Open Unix 8
will
be
the LKP, which stands for Linux Kernel Personality. It is
going
to be a modern Linux Kernel running
simultaneously with the UnixWare
kernel allowing us to
run both Unix and Linux software on the same box,
seemlessly and effortlessly :-)
Emphasis added by me.
I
know it isn't SCO's own words (the URL is
zenez.pcunix.com/tmp/ou8faqz/cache/252.html),
but it would be very
interesting to know where they have
gotten this information (yeah, yeah,
I'll buy a tin-foil
hat any day now).
Roland Buresund
---
--
I'm Still Standing...
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| Authored by: Anonymous on Monday, November 03 2003 @ 09:13 PM EST |
I don't remember where I read that Novell didn't contest the authenticity of
the amendment and SCO registered their copyright shortly afterwards. I wouldn't
put much hope in the amendment not being authentic.
(note: there is more than enough to make SCO fail on other issues, even with the
amendment, I'm not trying to defend them)[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 03 2003 @ 10:34 PM EST |
If you accept SCO's version of things, they knew this Amendment existed but
didn't know where it was. They apparently did pester Novell about transferring
the copyrights for months, and even went to the trouble of collecting
depositions. The problem I see for SCOG is that the "drafting error"
doesn't change anthing about their lack of equitable interest (section 1.2) or
Novell's rights to the SVRX royalties, not to mention Novell's power to waive
or assign any of SCO's SVRX rights (section 4.16). It doesn't appear that SCO
has the right to any SVRX "Unix for Linux" licenses or royalties
either.
http://www.linuxworld.com/story/20909.htm
Here's the relevant extract:
'The document that that paralegal came up with is an amendment to the September
19, 1995 Asset Purchase Agreement between Novell and the Santa Cruz Operation,
the original SCO. It's dated October 16, 1996 and it's signed by SCO house
counsel Steven Sabbath and Novell CFO James Tolonen.
It amends Schedule 1.1(b) of the original 1995 deal that - because of a
"drafting error," according SCO senior VP Chris Sontag - deprived
the Santa Cruz Operation of the copyrights it had agreed to buy and changes the
wording called - now this is important - "Excluded Assets" to read:
"All copyrights and trademarks, except for the copyrights and trademarks
owned by Novell as of the date of the agreement required for SCO to exercise its
rights with respect to the acquisition of Unix and UnixWare technologies.
However, in no event shall Novell be liable to SCO for any claim brought by any
third party pertaining to said copyrights and trademarks."
The verbiage might be a bit confusing at first because it's in the negative,
but if you read it a couple of times you realize that it says that Novell is
making over the Unix and UnixWare copyrights and trademarks to SCO.
At least all of SCO lawyers maintain that it does.
There's been some unofficial muttering out of the Novell camp about the
original agreement not being amendable but there seems to be no evidence of that
claim in the thing. We weren't able to round up any official Novell folks. It
was after business hours when the story broke.
Sontag, who's running the company's SCOsource licensing scheme, said this
amendment thing is the document that he's been asking Novell for for months.
Messman's letter, he said, turned those requests into SCO
"repeatedly" asking "Novell to transfer the copyrights to SCO,
requests that Novell has rejected."
"We knew this amendment existed," Sontag said. "We just
didn't know where it was."
The company has collected depositions from people like former Novell CEO Bob
Frankenberg, Santa Cruz co-founder Doug Michels and Santa Cruz CEO Alok Mohan as
to the intent of the original agreement and they all reportedly support SCO's
interpretation of events, not Novell's.
The original 1995 agreement also invests in SCO "all rights and ownership
of Unix and UnixWare... including source code..." (Schedule 1.1(a)),
"all of seller's claims arising after the closing date against any
parties relating to any right, property or asset included in the business"
and "all of seller's rights pertaining to Unix and UnixWare under any
software development contracts, licenses and any other contracts to which seller
is a party or by which it is bound and which pertains to the business (to the
extent such contracts are assignable" (Schedule 1.1(g)).
Sontag identifies clause "L" of Schedule 1.1(a) as the
"strongest legal stuff we've got." "L" turns over to
SCO the "Software and sublicensing agreement... This includes the source
code and sublicensing agreements that seller has with its OEM, end user and
educational customers. The total number of these agreements is approximately
30,000."'[ Reply to This | # ]
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| Authored by: outtascope on Tuesday, November 04 2003 @ 01:29 AM EST |
Someone who knows more details may be able to clarify this, but what might the
role of Ray Noorda (of NFT and Canopy Group fame) have been in this
"ammendment"? He was about an %8 holder in Novell if I read the SEC
filings correctly up to 2000, but I can't determine when his holdings began and
how significant they may have been at the time of transfer. I apologize if I am
asking something that is common knowledge amongst the regulars here.[ Reply to This | # ]
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| Authored by: PM on Tuesday, November 04 2003 @ 02:46 PM EST |
I seem to have wound up with coordinating the text version of the APA. Various
people are typing up various parts (the PDF is too cruddy to OCR), but there are
some contributors that I am unaware of. If anyone has 'claimed' any pages for
typing please let me know. If anyone has finished work, please let me have it
so I can merge it into the finished document.
If anyone would like to type up a page or two, please let me know and I will
allocate them.
Regards
Peter
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