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| An Objection to SCO's proposed reorganization raises questions about SNCP |
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Wednesday, February 27 2008 @ 11:02 PM EST
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Time to catch up with numerous filings in the bankruptcy. Folks heard about the proposed reorganization and may be smelling money in the air, I gather, because here comes a creditor, Citi Financial, who's decided it's worth it now to hook a car to the creditors' train and send in their lawyers. We'll see if there really is any money, though. Another creditor, Main 10, has transferred its claim to Argo Partners, and another set of SCO's monthly operating reports were filed. And there's another pro se Objection [PDF], this time to the reorganization plan. It's considerably more interesting than the previous one and raises some valid questions, although I continue to wish they had been brought to the US Trustee's Office. One good thing is it's been filed early enough that others can build on it, should they choose to. And the research done, as seen in the exhibits attached to the Declaration in Support [PDF] of the objection, raises another issue, not directly highlighted in the objection: what entity exactly is offering to do this deal? The SCO press release about the proposed deal may be inaccurate in an important aspect. Either that or the MOU is. The press release stated that Stephen Norris Capital Partners was doing the deal, that it was a limited partnership, without specifying in which state, and it listed Norris as "managing partner" of SNCP: "We saw a tremendous investment opportunity in SCO and its vast range of products and services, including many new innovations ready or soon to be ready to be released into the marketplace," said Stephen Norris, managing partner for SCNP....
About Stephen Norris Partners
Stephen Norris & Co. Capital Partners, L.P.
is a private equity investment partnership formed to (i) "co-invest" alongside well established and successful private equity and leveraged buyout firms, (ii) take advantage of the business experience and relationships of its Investment Committee, including Steve Norris' long-standing relationships and substantial private equity experience. While the press release says that SNCP is a partnership, the MOU says it's a deal between SCO and STEVE NORRIS CAPITAL PARTNERS, LLC and it defines SNCP as "Stephen Norris Capital Partners, LLC" and it further says it's a Delaware limited liability company ("Investment Team: Stephen Norris Capital Partners, LLC, a Delaware limited liability company ("SNCP")."). So my first question has to be: which type of entity is doing this deal? An LP or the LLC? And which LLC? Is it a Delaware LLC, which the objector searched for and can't find, or a Florida LLC, which he did find? Is there any such Delaware LLC? If so, it must be very recently formed if the objector's search couldn't find it. The objector asked SCO's lawyers, and they say they've asked SCO and will get back to him. What's that about? Did they do any checking on this proposed deal to make sure it isn't flim flam? Which entity is really doing this deal? And which one has the money, if any of them? How do you know? And if it's an LLC, who is guaranteeing the money? An LLC means limited liability company, and that means what it says.
There is a Stephen Norris & Co. Capital Partners, LP formed in New York in 2005. There is also a Florida LLC, formed in July of 2007, Stephen Norris Capital Partners, LLC, as you can see in Exhibit C. But where is the Delaware LLC? And if it's an LLC doing the deal, why did the press release say it was the partnership? You can't be a managing partner of an LLC, and that is what the press release said Stephen Norris is. This, to me, raises some deep worries.
That's my question, but here are the important concerns raised in the Objection:
does SNCP really have the $95 million it is offering to loan in the event Novell, IBM and Red Hat obtain money judgments? How do you know? There isn't so far any evidence that it has that kind of money or any history of creditworthiness, according to the objection. Was SNCP, LLC just formed? If so, how do you measure creditworthiness? And where's the money? Exhibit E is an affidavit by Norris, filed in a lawsuit that was eventually dismissed on jurisdictional grounds. Norris stated in that 2007 affidavit: 7. In late 2005 in New York, GMG and I formed Stephen Norris & Co. Capital Partners, L.P. (the "Partnership"). Since its inception, the Partnership has conducted limited or no business operations, including any co-investment transactions.
In the unlikely event that SCO were to prevail, how about the windfall to SNCP at the expense of security holders -- is it appropriate, if SNCP doesn't actually have $95 million and thus isn't actually putting up a dime? But the most substantive concern raised is this: I. THE DEFINITIVE DOCUMENTS MUST BE INCLUDED IN THE DISCLOSURE STATEMENT AND FILED 25 DAYS BEFORE THE HEARING.
4. The Motion describes what appears to be a promising plan of reorganization. Unfortunately, the Debtors are not proposing an adequate review schedule.
5. The Motion candidly states that the "Debtors concede that the Plan Sponsor Protections seek extraordinary relief from the Court"... and that the "Debtors acknowledge the lack of precedent for the Settlement Compensation and Sale Compensation components of the Plan Sponsor Protections"...Despite this, the Debtors propose not to reveal the details of the extraordinary relief that they are requesting until the day that objections are due.
6. This is the schedule set forth in the Debtors' motion:
February 14: Filing of the Motion and the Memorandum of Understanding ("MOU").
February 29: Filing of the Debtors' Joint Plan of Reorganization (the "Plan") but not "the definitive agreements contemplated thereby (the 'Definitive Documents')". (Motion at p. 1)
February 29: Filing of the Disclosure Statement in Connection with Debtors' Joint Plan of Reorganization (the "Disclosure Statement"), also sans Definitive Documents. (Id.)
March 26, 4:00 P.M.: Deadline for objections to the Motion and for objections to approval of the Disclosure Statement. (Id.)
March 26 (unspecified hour): Filing of the Definitive Documents. (Id.)
April 2: Hearing on the Motion and on approval of the Disclosure Statement. (Id.) 7. The debtors are proposing to file the Disclosure Statement 33 days before the hearing, in compliance with the requirement that it be filed at least 25 days before the hearing (F. R. Bankr. P. 3017). However, it is clear that this Disclosure Statement will be inadequate for evaluating the Plan, because it will not include any of the Definitive Documents. The Debtors are proposing to file the Definitive Documents separately, and to do so a mere five business days before the hearing, with is zero days before objections are due.... 18. The Motion, as currently scheduled, seeks extraordinary relief on extraordinarily short notice. I respectfully request that the Court deny the Motion if the Definitive Documents, including the Firm Financing Commitment, have not all been filed at least 25 days prior to the hearing. This is a valid concern, in my view. Here's the Amended Notice [PDF] setting forth the deadline SCO proposed for objections to be filed, March 26, which is the same day that SCO says in its Motion [PDF] that it will file "the forms of the Definitive Documents" with the details of the financing, which is five days before the hearing. I had not noticed this important detail. It reminds me of the hearing on the leases. Last-minute revelations are SCO's MO, of course. What might that indicate? Here are the filings: 357 -
Filed & Entered: 02/22/2008
Operating Report
Docket Text: Debtor-In-Possession Monthly Operating Report for Filing Period January 2008 for the SCO Group, INc. Filed by The SCO Group, Inc.. (Attachments: # (1) Certificate of Service) (O'Neill, James)
358 -
Filed & Entered: 02/22/2008
Operating Report
Docket Text: Debtor-In-Possession Monthly Operating Report for Filing Period January 2008 for SCO Operations, Inc. Filed by The SCO Group, Inc.. (Attachments: # (1) Certificate of Service) (O'Neill, James)
359 -
Filed & Entered: 02/22/2008
Objection
Docket Text: Objection to Debtors' Motion to Approve Settlement
Compensation or Sale Compensation and Expense Reimbursement To Plan Sponsor (related document(s)[346] ) Filed by Alan P. Petrofsky (Attachments: # (1) Declaration of Alan P. Petrofsky) (Petrofsky, Alan)
360 -
Filed & Entered: 02/25/2008
Certification of Counsel
Docket Text: Certification of Counsel Regarding Second Monthly Fee Application of Mesirow Financial Consulting, LLC as Financial Advisors to the Debtors for Compensation and Reimbursement of Expenses for the Period from December 1, 2007 through December 31, 2007 (related document(s)[313] ) Filed by Mesirow Financial Consulting, LLC. (Selzer, Sandra)
361 -
Filed & Entered: 02/26/2008
Transfer/Assignment of Claim
Docket Text: Transfer/Assignment of Claim. Transfer Agreement 3001 (e) 1 Transferor: Main 10(Amt. $2,000.00) To Argo Partners. Filed by Argo Partners. (Gold, Matthew)
362 -
Filed & Entered: 02/26/2008
Notice of Appearance(B)
Docket Text: Notice of Appearance Filed by Citi Financial Inc.. (Attachments: # (1) Certificate of Service) (Martin, Robert)
363 -
Filed & Entered: 02/26/2008
Motion to Appear pro hac vice (B)
Docket Text: Motion to Appear pro hac vice of Kim B. Andres. Receipt Number 150884, Filed by Citi Financial Inc.. (Martin, Robert)
364 -
Filed & Entered: 02/27/2008
Certificate of No Objection
Docket Text: Certificate of No Objection (No Order Required) Regarding Fourth Monthly Application of Pachulski Stang Ziehl & Jones LLP, as Co-Counsel to the Debtors and Debtors in Possession, for the Period from December 1, 2007 through December 31, 2007 (related document(s)[320] ) Filed by The SCO Group, Inc.. (Attachments: # (1) Certificate of Service and Service List) (Werkheiser, Rachel)
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| Authored by: Anonymous on Wednesday, February 27 2008 @ 11:13 PM EST |
Holding evidence in left hand, frantically waving right hand,
"look over here, over here, my right hand!, no no, don't look at my left
hand!"
with apologies to PT Barnum[ Reply to This | # ]
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| Authored by: Darigaaz on Wednesday, February 27 2008 @ 11:24 PM EST |
Short summary of the correction in the title, if possible (something like
"misteak -> mistake".
---
Many eyes make all bugs shallow - not just in software, but journalism and law
as well.[ Reply to This | # ]
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| Authored by: Darigaaz on Wednesday, February 27 2008 @ 11:25 PM EST |
Instructions on HTML (including links) can be seen below the comment box.
---
Many eyes make all bugs shallow - not just in software, but journalism and law
as well.[ Reply to This | # ]
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| Authored by: Darigaaz on Wednesday, February 27 2008 @ 11:26 PM EST |
Title of the News Pick in the comment title, if possible.
---
Many eyes make all bugs shallow - not just in software, but journalism and law
as well.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 12:38 AM EST |
You were fair with regards the issue Petrofsky raised. Calling it a "valid
concern".
You know, if you keep being fair like that, it's going to make
those that try and paint you as "unfair" or "hates AP for some reason and is
biased" have a much harder time ;)
RAS[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Thursday, February 28 2008 @ 01:00 AM EST |
There seems to be a lot of that going around.
Reminds me of the Bill & Melinda Gates Foundation,
Cascade Investments, and Cascade Investment.
Repeatedly we see obfuscation as to the names
of the entities, and paperwork that is not clear.
This seems to be intentional, not an accident.
Of course there is oldSCO and newSCO.
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 02:16 AM EST |
The 25 days issue, and the previously-raised issue about the accounts which
didn't add up, make me wonder whether the US Trustee is doing an adequate
job.
Maybe these things should have been brought to the US Trustee's
attention, but shouldn't the US Trustee have noticed them?
Incidentally,
I was astounded that the judge (and PJ) seemed to think that accounts not adding
up was a triviality of no importance. Accurate accounting seems to me to be at
the core of what bankruptcy proceedings are all about. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 02:56 AM EST |
Can the bankruptcy judge ask that the proposed buyer of SCO post a bond
for the amount they are putting up - just to prove they have the money on
hand?
Show me the money!
It seems to me that the proposed buyer of SCO is a scam, recently created
company, designed to purchase SCO in such a way as to avoid paying the
creditors and to continue the litigation business - all without putting up any
money proposed.
Show me the money![ Reply to This | # ]
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| Authored by: Stevieboy on Thursday, February 28 2008 @ 03:46 AM EST |
Multiple companies having the same directors/owners and very similar names?
I have had dealings with entities like this in the past here in the UK (needless
to say unwittingly).
The company I thought I worked for and with which all my correspondence was
quoted (as a engineering contractor) is still in existence while the company I
actually worked for (which had a VERY similar name) went into receivership owing
me £2500. The directors of both companies were/are the same husband and wife
"team".
What other reason is there for forming a series of companies with very similar
names? I'm not asking this rhetorically, I really want to know.[ Reply to This | # ]
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| Authored by: cybervegan on Thursday, February 28 2008 @ 04:03 AM EST |
The press release says "managing partner for SCNP...." but then refers
to "Stephen Norris & Co. Capital Partners, L.P" which would,
logically be SNCP. Maybe it's misdirection - maybe it *is* in fact SCNP and not
SNCP, or maybe it's just a typo.
-cybervegan
---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 04:14 AM EST |
From heading #2.
"I am filing this initial objection now, more than a month
before the deadline, in order that the Debtors will have sufficient opportunity
to resolve the issue raised herein."
We shall see.[ Reply to This | # ]
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| Authored by: The Mad Hatter r on Thursday, February 28 2008 @ 06:35 AM EST |
That we are dealing with a bunch of thieves.
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
[ Reply to This | # ]
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| Authored by: sylvester on Thursday, February 28 2008 @ 06:56 AM EST |
File Number: 4052355 Incorporation Date / Formation Date: 10/28/2005
Entity Name: STEPHEN NORRIS & CO. CAPITAL PARTNERS, L.P.
Entity Kind: LIMITED PARTNERSHIP (LP) Entity Type: GENERAL
Residency: DOMESTIC State: DE
REGISTERED AGENT INFORMATION
Name: THE CORPORATION TRUST COMPANY
Address: CORPORATION TRUST CENTER 1209 ORANGE STREET
City: WILMINGTON County: NEW CASTLE
State: DE Postal Code: 19801
Phone: (302)658-7581[ Reply to This | # ]
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| Authored by: ahougie on Thursday, February 28 2008 @ 07:31 AM EST |
I think your question as to whether it is the LP or an LLC and which LLC is a
bit of a red herring. The MOU says:
"Stephen Norrs Capital Parners, LLC shall have the right to assign and
delegate its rights and obligations hereunder to a special purpose entity
created for the purpose of engaging in this transaction and in which Stephen L.
Norrs is a manager or executive officer."
which means that the definitive agreement (including the funding obligations)
may be with none of these parties.[ Reply to This | # ]
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| Authored by: vadim on Thursday, February 28 2008 @ 07:44 AM EST |
href="http://www.theonion.com/content/video/diebold_accidentally_leaks">
This
<
/a> is hilarious[ Reply to This | # ]
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| Authored by: webster on Thursday, February 28 2008 @ 02:03 PM EST |
.
...is not a reorganization at all. After all you can't reorganize nothing. All
these SCO assets they gush about aren't doing SCO any good now and they won't do
SNCP and SCO any good "reorganized."
They talk about $100 million but they take care to be sure it doesn't have to be
spent.
This is a structured bluff. They hope to inspire a settlement with the prospect
of $100 million dollars more of litigation --by one party alone. Unfortunately
they are a billion or so away from a retrial in fees and bonds. One can only
think of one entity that could consider these odds.
The first tier of this bluff is to inspire something now before the purported
reorganization. SNCP would deservedly get their cut at this point.
The second tier of this bluff is to carry it out and see if SNCP et al put up
the money. A settlement at this point would mostly go to those who put up the
money.
If neither tier one or two inspires a settlement, then tier three offers some
consolation in the by-product of a little market play.
It is a thousand and one dramatic ways to die. SCO is spinning in the swirl
waiting to drain. Why not try something or anything? It is the perfect time to
be desperate. It is the final cigarette and last words before the end. If they
can't stop it, put it off. It's like kicking the back widows out of the police
car from inside.
For SNCP why not? If you don't buy that lottery ticket, you can't win that 250
million.
They don't want this plan to succeed. Or the PIPE Fairy likes drama and feels
obliged to amuse GL.
~webster~[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 04:09 PM EST |
I keep reading that, but who is that raising the objection that's in block
quotes saying that they won't have any time to object? There are so many people
mentioned, I'm not sure who said that without reading through the dozen or so
filings mentioned...[ Reply to This | # ]
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| Authored by: TiddlyPom on Thursday, February 28 2008 @ 04:18 PM EST |
As far as I am concerned, there is no confusion at all. I am referring to PC
World (Personal Computer World) the shop and not the UK or USA
magazines.
The fact the the cheaper PCs were running Linux and not
Windows was portrayed as a negative point - illustrated by the fact that they
could not run the benchmark. The machines could, of course, run the benchmark
but only if they had been running PCW's favorite operating system aka
Windows.
I agree with PCW being irrelevant to non-technical users but
unfortunately a much greater majority of the population (of either the UK or the
USA) is not as technically competent as probably the majority of the readers of
Groklaw. Many 'Joe Public' computer buyers would not realize that a $200 PC
running a distribution of Linux can (without spending any money on software
except perhaps download time) be as functionally rich as a PC loaded with
$100's worth of proprietary software.
Even better running gOS (or
better standard Ubuntu IMHO) on a PC rather than Vista would almost certainly
result in a faster system for less financial outlay.
It is the constant
attempt to brainwash people that having Windows on a PC is the only practical
choice which is utter hogwash. Joe Public needs to know now that they DO have a
choice and do not need to run Microsoft Vista if they do not want to. Linux
works, is ready for the desktop now and is quite usable by non-technical users
thank you very much PCW.
My wife and I have been using Linux as our only
operating system for a couple of years now and we can do anything that we want
to without resorting to proprietary software (except perhaps for some codecs).
Microsoft Vista is a monster memory and resource hog and designed from the
ground up with digitam restriction management at its core. It may suit some
people but I'm sure that PCW could sell PCs pre-loaded with Ubuntu or SUSE Linux
as well as Vista if it showed what Linux could do rather than trying to showcase
Linux as a poor clone of Windows (which it isn't).
---
Open Source
Software - Unpicking the Microsoft monopoly piece-by-piece. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 05:16 PM EST |
As far as I can see this is not a reorganization plan at all.
Someone says they are going to throw $5M more at SCO. By the time the deal is
done SCO will have burned through $5M they had when they declared BK. So
financially SCO will be in the same place when the deal is done as when they
filed for BK.
The "reorg plan" does not speak to ways to become profitable, cut
losses or cut liabilities. In fact the plan speaks to assuming up to $95M *
(1.2)^N, where N is the number of years it continues more in liabilities.
The plan changes the name on the door but does not address the financial issues
that are the cause of the bankruptcy filing.
[ Reply to This | # ]
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| Authored by: Yossarian on Thursday, February 28 2008 @ 05:31 PM EST |
>The Debtors are proposing to file the Definitive Documents
>separately, and to do so a mere five business days before the
>hearing, with is zero days before objections are due....
I assume that the judge realizes what is wrong in this picture.
Anyway, why can't judge tell SCO "file the Definitive
Documents whenever they are ready and we will have a
hearing 25 days after that"?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 05:43 PM EST |
| There is a good chance that there is is all just a bargaining tactic by SCO to
try to get a settlement with Novell and IBM. SCO is holding out the "threat" of
continued litigation just when Novell and IBM thought the case was winding to a
conclusion. SCO might be hoping to get a settlement which leaves the principals
with at least some of their money and an end to the counter claims.
The
reason for the SNCP ownership maze may be because there is no $100 million,
there never was any $100 million, and there won't be any $100 million.
SNCP is just making sure that there is nothing on paper that actually commits
them to providing this money. Instead, some shell company with no assets of
their own will be the ones legally "responsible". The real SNCP then collects a
tidy commission for providing this PR service.
I suspect that when the time
comes to put actual money on the table, this deal will evaporate just like the
York deal did. [ Reply to This | # ]
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| Authored by: GriffMG on Thursday, February 28 2008 @ 08:04 PM EST |
Firstly, to be bait it needs to ring true, i.e. a fish needs to think the thing
on the hook is a worm, and is juicy and that it might be worth biting.
Frankly, I don't think Novell and IBM give a fig. Their agenda is to nail tSCOg
as best they can.
Secondly, the party to the bait has to want, like to, even have a slight
yearning towards caring about settling.
Novell and IBM might have settled, years ago, if they thought it would help -
but it won't and they are not going near a settlement now.
No chance, not even if tSCOg had a Billion Bucks to start this game with.
Comes a point where even the shills won't go there!
---
Keep B-) ing[ Reply to This | # ]
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| Authored by: GriffMG on Thursday, February 28 2008 @ 08:12 PM EST |
The will have seen all the tSCOg machinations in the past. They will expect the
worst.
The US trustee will sort out the names etc.
Novell and IBM will sort out some surity for the money.
I'm sure
---
Keep B-) ing[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 28 2008 @ 11:05 PM EST |
The FIRST thing you do when you deal with an entity in ANY transaction is to ...
wait for it ... DO A COMPANY SEARCH.
Every coporate lawyer in every corporate law firm on the PLANET knows this. Call
up the company search unit and ask for a caompany search. That's just the most
basic pre-requisite and is a fundamental part of due diligence.
Borderline incompetence?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 29 2008 @ 08:58 AM EST |
PJ,
The "update" that you posted in the article is not news. Mr.
Petrofsky found the listing for STEPHEN NORRIS & CO. CAPITAL PARTNERS, L.P
in Deleware (le Number: 4052355) in his own on-line searching and included
screen shots in the exhibits to his "Declaration in Support" of his objection.
I pointed this out to sylvester yesterday when he first posted it as a
comment.
Mr Petrofsky also refers to the LP directly in his objection,
in paragraph 14, saying:
Perhaps this limited partnership will be
the source of funds for the LLC. However, as recently as January 2007, this
entity also did not have any history to
speak of, according to its titular
partner:
In late 2005 in New York, GMG and I formed Stephen Norris
& Co. Capital Partners, L.P. (the “Partnership”). Since its inception, the
Partnership has conducted limited or no business operations, including any
co-investment transactions. (“Affidavit of Stephen Norris in Support of
Defendants’ Motion to Dismiss”, dated January 4, 2007, dkt #9-4 at ¶7, GMG
Capital Investments v. Robbins et al., No. 2:06-cv-876, D. Utah, Decl. at Ex.
E).
[ Reply to This | # ]
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