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AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT |
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Monday, December 08 2003 @ 07:34 AM EST
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Another piece in our jigsaw puzzle, Amendment No. 1 to the 1995 Asset Purchase Agreement. Thanks go to Steve Martin for this transcription work.
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AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1
TO ASSET PURCHASE AGREEMENT
As of the effective date indicated below, the September 19, 1995 asset Purchase Agreement (the
"Agreement") between Novell, Inc. ("NOVELL") and The Santa Cruz Operation, Inc. ("SCO")
is amended in the following respects.
- In the Recitals, Paragraph A, line 4 is amended to read as follows:
-- other products ("Auxiliary Products") which are directly related to UNIX and
UnixWare (collectively, the --
-
In Section 1.1, the following new paragraph (d) is added:
-- (d) Right of First Refusal. The parties agree that, within a reasonable time after the
Closing Date, they will enter into a separate agreement whereby Buyer will have a right
of first refusal to purchase from Seller (i) all appropriate copies of publications relating to
the Business and in the possession, custody or control of Seller's technical library located
at its facility in Florham Park, New Jersey and (ii) physical assets, including lab
equipment and financial accounting server(s), owned by Seller and used in the Business.
Each such item will be valued at net book value as of November 1, 1995. Such right of
first refusal shall be exercisable until (1) February 29, 1996 as to the financial accounting
server(s) and (2) January 31, 1996 as to all other items. --
-
In Section 1.2, paragraph (b):
- The following clause is added at the beginning of the first sentence ("Buyer
agrees ... Section 4.16 hereof"):
-- Except as otherwise provided in paragraph (e) of this Section 1.2, ---
-
Lines 14-15 are amended to read as follows:
-- The amounts of additional royalties to be paid in connection with Buyer's sale of the
UnixWare products are identified in detail in Schedule 1.2(b) hereto. Seller ---
-
Section 1.2(d), is amended in its entirety to read as follows:
-- (d) Asset Transfer and Transfer Taxes. Notwithstanding any other provision of this
Agreement, the Assets shall remain the property of Seller until expeditiously delivered to
Buyer in the manner and at the locations prescribed as follows in this Section 1.2(d), or as
subsequently agreed in writing.
Seller shall deliver and Buyer shall accept source code, object code, related
documentation and other software assets described in Schedule 1.1(a) (collectively
referred to as "Software Assets") only at Seller's facility in Florham Park, New Jersey.
In the event that Seller subsequently discovers Software Assets outside of New Jersey
contemplated by this Agreement which have not heretofore been delivered to Buyer in
New Jersey, Seller shall consult with Buyer to determine if Seller may destroy such assets
in place without delivery to Buyer, or transport them to New Jersey or another location
specified by Buyer for delivery to Buyer.
Seller represents that to its knowledge software documentation previously delivered to
Buyer for the purpose of due diligence is the property of Seller, and Buyer agrees that it
will destroy or return possession to Seller in New Jersey before title passes to Buyer.
Seller and Buyer agree that the license that Seller is entitled to exercise after Closing
pursuant to Section 1.6 hereof is a right not sold to Buyer and as such is a right retained
by Seller.
Buyer shall pay and promptly discharge when due the entire amount of any and all sales
and use taxes ("Sales Taxes") imposed or levied by reason of the sale of the Assets to
Buyer. The parties shall cooperate with each other to the extent reasonably requested and
legally permitted to minimize any such Sales Taxes. If Seller is obligated to pay any of
such Sales Taxes, Buyer shall reimburse Seller on demand for the amount of such
payment.
-
In section 1.2, the following new paragraphs (e) and (f) are added:
-- (e) Revenues to be Retained by Buyer. Subject to the last sentence of paragraph (a) of
Section 4.16 hereof, Buyer shall be entitled to retain 100% of the following categories of
SVRX Royalties collected by Buyer:
- fees attributable to stand-alone contracts for maintenance and support of
SVRX products listed under Item VI of Schedule 1.1(a) hereof;
- source code right to use fees under existing SVRX Licenses from the
licensing of additional CPU's and from the distribution by Buyer of additional
source code copies;
- source code right to use fees attributable to new SVRX licenses approved
by Seller pursuant to Section 4.16(b) hereof; and
- royalties attributable to the distribution by Buyer and its distributors of
binary copes of SVRX products, to the extent such copies are made by or for
Buyer pursuant to Buyer's own licenses from Seller acquired before the Closing
Date through Software Agreement No. SOFT-000302 and Sublicensing
Agreement No. SUB-000302A.
(f) Monthly Reports. Within one (1) calendar month following each calendar month in
which SVRX Royalties [and royalties from Royalty-Bearing Products as contemplated in
Schedule1.2(b) hereof] are received by Buyer, Buyer shall provide to Seller, in electronic
file format, a report detailing all such royalties. Such monthly reports shall be separately
broken down by revenue type (i.e. source code right to use fees, gross and net binary per
copy fees, and support fees), by product, by customer, by quarterly period by which
distribution occurs, and by country (if provided by customer) of distribution. Each such
report shall also detail, with respect to the revenues reported, any third party payments
attributable to such revenues, broken down by the identity of such third parties and the
applicable payments to each. Buyer shall provide Seller with a single point of contact to
discuss specific additional revenue and unit information (by customer) which, in Seller's
judgment, are appropriate to supplement such monthly reports. Buyer shall also provide
to Seller, on a monthly basis, a report that reconciles monthly revenues reported (and
accounts receivable) to cash remittances actually made to Seller by Buyer. --
-
In Section 1.4, line 8 is amended to read as follows:
-- in the loss or diminution thereof provided, however, that Seller shall, as soon as
practicable after the Closing Date and at its own expense, --
-
In Section 1.6, lines 1-2 are amended to read as follows:
-- 1.6 Seller's Licenses to Assets. Concurrent with the Closing, Buyer and Seller shall
enter into a license agreement providing Seller with a royalty free, perpetual ---
-
In Section 4.13:
- In the first paragraph, lines 5-6 are amended to read as follows:
-- is comparable to that offered by Seller. The Benefits Package --
-
The following new paragraphs are added at the end of the section:
-- For purposes of this Section 4.13, the term "Type 1 employee" means a person who
(1) as of the effective date of this Agreement was employed by Seller in any technical,
business or financial (but not sales) capacity in Seller's Operating System Division in
Florham Park, New Jersey, Provo, Utah or San Jose, California or otherwise in
connection with the Business and/or the Assets and (2) whose employment with Seller
thereafter terminates under circumstances under which such employee is given severance
benefits from Seller including payment ("Severance Payment") calculated for a
prescribed interval ("Severance Period").
Buyer agrees that it will not knowingly offer employment to, or offer to hire as a
contractor, any Type 1 employee until the Severance Period for such employee is
completed.
In the event that for any reason Buyer offers employment to, or offers to hire as a
contractor, any such employee before the end of the period contemplated in the preceding
sentence, Buyer shall remit to Seller a prorated portion of such Severance Payment
applicable to the period between February 1, 1996 and the date of such offer. Such
remittance shall be made to Seller within ten (10) days after such employee commences
work on behalf of Buyer.
Seller agrees that prior to February 1, 1996, it will provide to Buyer a list of persons who
are Type 1 employees.
Notwithstanding the above and except for normal attribution of previously hired employees,
Buyer agrees not to hire any Type 1 employees for a period of 150 days from February 1,
1996. If Buyer does then Buyer will remit to Seller the full Severance Payment made to
such Type 1 employees. --
-
In Section 4.16, paragraph (a):
-
The second sentence ("Within 45 days ... preceding quarter") is amended to read
as follows:
-- Within one (1) calendar month following each calendar month in which SVRX
royalties (and royalties from Royalty-Bearing Products) are received by Buyer
[except for those SVRX Royalties to be retained in their entirety by Buyer
pursuant to paragraph (e) of Section 1.2 hereof] Buyer shall remit 100% of all
such royalties to Seller or Seller's assignee. Buyer shall also provide to Seller,
within six (6) days following the calendar month in which such royalties are
received, and estimate of the total amount of such royalties. --
-
In the last sentence ("In consideration ... SVRX Royalties") the following is
added at the end before the period:
-- together with a remittance sufficient to cover applicable third party payments,
(if any) which are attributable to distributions giving rise to such SVRX Royalties
(and royalties from Royalty-Bearing Products) and for which Buyer has assumed
Seller's obligation of payment to such third party. --
-
In Section 4.16, paragraph (b), the last sentence ("Buyer shall not ... Merged Product") is
amended to read as follows:
-- Notwithstanding the foregoing, Buyer shall have the right to enter into amendments of
the SVRX Licenses (i) as may be incidentally involved through its rights to sell and
license UnixWare software or the Merged Product [as such latter term is defined in a
separate Operating Agreement between the parties to be effective as of the Closing Date,
a copy of which is attached hereto as Exhibit 5.1(c)], or future versions of the Merged
Product, or (ii) to allow a licensee under a particular SVRX License to use the source
code of the relevant SVRX product(s) on additional CPU's or to receive an additional
distribution, from Buyer, of such source code. In addition, Buyer shall not, and shall
have no right to, enter into new SVRX Licenses except in the situation specified in (i) of
the preceding sentence or as otherwise approved in writing in advance by Seller on a case
by case basis. --
-
In Schedule 1.1(a):
- In Item I:
-
each occurrence of "UNIX" and "UnixWare" is changed to read
-- UNIX, UnixWare and Auxiliary Products --.
-
line 3, before "technical" the word "appropriate" is added.
-
line 5, before "engineering" the word "appropriate" is deleted.
-
in the UNIX Source Code Products listing, the title is changed to "UNIX and
UnixWare Source Code Products" and item D is amended to read as follows:
-- The following foreign versions of UnixWare software:
UnixWare 1.0 French
UnixWare 1.0 German
UnixWare 1.0 Italian
UnixWare 1.0 Spanish
UnixWare 1.1 French
UnixWare 1.1 German
UnixWare 1.1 Italian
UnixWare 1.1 Spanish
UnixWare 1.1 Japanese
UnixWare 1.1 Chinese
UnixWare 2.01 French
UnixWare 2.01 German
UnixWare 2.01 Italian
UnixWare 2.01 Spanish
UnixWare 2.01 Japanese
-
in the Products Under Development listing, the following is added to the end:
-- F. Amadeus Software --
-
(vi) the following new listing is inserted between the Products Under Development
listing and the Other Technology listing:
-- Auxiliary Products
[as listed in Attachment 1 to this Schedule I.1(a)] --
-
The following is added at the end of Item III:
-- N. Agreements for development and licensing of Amadeus Software. --
-
Item IV is changed to read:
-- All master copies of UNIX, UnixWare and Auxiliary Software owned by
Seller, except as retained by Seller in connection with seller's licenses specified in
Section 1.6 hereof. --
-
In Item VI:
-
The first line is amended in its entirety to read as follows:
-- All contracts relating to the SVRX Licenses and Auxiliary Product Licenses
(collectively "SVRX Licenses") listed below: --
-
The following is added to the list of SVR4 Licenses:
-- Auxiliary Products --
-
In Schedule I.1(b), Item VII is amended to read as follows:
-- VII. All accounts-receivable or rights to payment concerning the Assets arising prior
to the Closing Date, subject to appropriate payments to Buyer in several situations
involving (a) prepayments received by Seller prior to the Closing Date under its customer
agreements which cover orders for licenses to and/or support for UnixWare products that
remain unfulfilled as of the Closing Date, or (b) any other rights to payments which
accrued to Seller prior to the Closing Date under such agreements for such unfulfilled
orders for UnixWare Products. Such situations are describe in Attachment 1 to this
Schedule I.1(b). The parties agree to adapt more detailed procedures, where appropriate,
to deal with such payments in each of such situations within ninety (90) days after the
Closing Date.
-
In Schedule 1.2(b), paragraph (b), the first sentence is amended to read as follows:
-- (b) Amount of Royalties. Attachment 1 to this Schedule 1.2(b) represents Seller's
annual forecast, as of the Closing Date, of the potential estimated market for units of
Unix System V, UnixWare, Eiger, MXU and White Box software [the "Plan" or "Unit
Plan"]. --
-
In Exhibit 5.1(c), paragraph (b) is rewritten in its entirety as follows:
-- Commencing November 1, 1995, Seller shall be responsible for bearing a certain
amount of the reasonable, auditable and fully burdened costs incurred on a combined
basis by Buyer and Seller for the completion of the GA version of the Eiger product, as
follows:
-
100% of such costs incurred by SELLER from November 1, 1995 up to
the Closing Date (estimated to be about $2,600,000);
-
50% of the first $5,000,000 of such costs incurred by both Companies
after the Closing Date;
-
25% of the next $10,000,000 of such costs incurred by both companies
after the Closing Date.
Buyer and Seller will separately maintain records of such costs incurred. On a calendar
month basis after the Closing Date, Buyer and Seller will exchange information as to
such development costs incurred in that month. Each party ("first party") will render
payment to the other party for any amounts such first party is responsible for which are
in excess of all amounts such first party has incurred. Each such payment shall be
remitted by such first party within thirty (30) days after receipt from the other party of an
invoice for such excess amount.
-
Attachments A, B and C to this Amendment No. 1 are incorporated as Attachment 1 to
Schedule 1.1(a), Attachment 1 to Schedule 1.1(b) and Attachment 1 to Schedule 1.2(b),
respectively.
All other terms and conditions of the Agreement shall remain in full force and effect.
The parties have executed this Amendment No. 1 through their duly authorized representatives
on the respective dates indicated below. The effective date of this Amendment No. 1 shall be
the later of such respective dates.
THE SANTA CRUZ OPERATION, INC. |
NOVELL, INC.
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By: (signature) |
By: (signature) |
Printed Name: Alok Mohan
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Printed Name: R. Duff Thompson
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Title: Chief Executive Officer
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Title: Senior Vice President - Corporate Development
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Date: December 6, 1995
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Date: December 6, 1995
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ATTACHMENT A
Listing of Auxiliary Products
Open Network Computing+
386 Implementation of UNIX System V Release 4
Multi-National Language Supplement
386 Implementation of UNIX System V Release 4
Multi-National Language Supplement
3B2 Implementation of UNIX System V Release 4
Multi-National Language Supplement
Application Source Verifier Release 2.0
Artus
C Compilation System for Motorola 68000
C Optimized Compilation System for UNIX System V
386/486
C++ Documents
C++ Language System Release 2.1
C++ Language System Release 3.0 and 3.0.1
C++ Language System Release 3.0.2
C++ Language System Release 3.0.3
C++ Object Interface Library Release 1.1
C++ Standard Components Release 2.0
C++ Standard Components Release 2.0.1
C++ Standard Components Release 3.0
C++ Standard Libraries Release 2.0
C++ Standard Libraries Release 3.0
C++ Standard Library Extension Release 1.0
C++LS 2.0
C++Translator
CFRONT Release 1.2
Chinese System Messages Implementation of UNIX
System V Release 4 System Messages
Distributed Manager/Framework & Host Manager
Release 1.0
Distributed Manager/Framework & Host Manager
Technology Licensing Program 1
Distributed Host Manager/Framework & Host Manager U.I.
Early Access
Distributed Manager/Print Manager Release 1.0
Distributed Manager/Print Manager Technology
Licensing Program 1
Distributed Manager/Print Manager Technology
Licensing Program 1
Distributed Manager/Print Manager U.I Early
Access
DM/SM-TLP1
Documentation Reproduction Provision - Unix System
V Handbook
Documentation Reproduction Provision - UNIX System
V Programming Books
Documentation Reproduction Provision - UNIX System
V Reference Books
Documentation Reproduction Provision - UNIX System
V User_s and Administrator_s Books
European Supplement Release 3.2
European System Messages Release 3.2
French Application Environment1.0/3b2
French System Messages Implementation of UNIX
System V Release 4 System Messages
French System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
German Application Environment
German System Messages Implementation of UNIX
System V Release 4 System Messages
German System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
Hindi System Messages Implementation of UNIX
System V Release 4 System Messages
Intel386 Microprocessor Implementation of VERITAS
File System (VxFS) Release 1.0
Intel386 Microprocessor Implementation of VERITAS
Visual Administrator Release 1.01
Intel386 Microprocessor Implementation of VERITAS
Volume Manager (VxVM) Release 1.01
Intel386 Microprocessor Implementation of VERITAS
Volume Manager (VxVM) Release 1.1
Intel386 Microprocessor Implementation of VERITAS
Volume Manager (VxVM) Release 1.1.1
Italian System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
Italian System Messages Implementation of UNIX
System V Release 4 System Messages
Japanese Application Environment I/O Rel 1.0
Japanese Application Environment Release 2.0
Japanese Application Environment Release 2.0
Japanese Application Environment Release 2.1
Japanese Environment for SVR4.2
Japanese Extension Implementation of UNIX System V,
Release 4.2
Japanese I/O Release 1.0
Japanese System Messages Implementation of UNIX
System V Release 4 System Messages
Japanese System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
Japanese System Messages Release 3.2
Korean System Messages Implementation of UNIX
System V Release 4 System Messages
Optimizing C Compiler for Intel, Release 3.0
Spanish System Messages Implementation of UNIX
System V Release 4 System Messages
Spanish System Messages Implementation of UNIX
System V Release 4.1 Enhanced Security System
Messages
System V Release 2.0 Machine Readable
Documentation
System V Release 3.0 Documentation Reproduction
Provision
System V Release 3.1 Documentation Reproduction
Provision
System V Release 3.2 Documentation Reproduction
Provision
System V Verification Suite Release 2
System V Verification Suite Release 3
System V Verification Suite Release 4
UNIX System V French System Messages Release 3.2
UNIX System V German System Messages Release 3.2
UNIX System V Release 1.0 for 3B2 Multi-National
Language Supplement
UNIX System V Release 1.0 for Intel 386 Multi-
National Language Supplement
UNIX System V Release 3.2 386 Doc. Reproduction
Provision
UNIX System V Release 3.2 for Intel 386 Multi-
National Language Supplement
UNIX System V Release 3.2 for Intel 386 Multi-
National Language Supplement
UNIX System V Release 3.2 Multi-National Language
Supplement
UNIX System V Release 4 European Language
Supplement
UNIX System V Release 4 STREAMS-Based Korean
Input/Output Subsystem
UNIX System V Release 4.0 386 Doc. Reproduction
Provision
UNIX System V Release 4.0 3B2 Doc. Reproduction
Provision
UNIX System V Release 4.0 i860 Doc. Reproduction
Provision
UNIX System V Release 4.2 European Language
Supplement, Version 1
UNIX System V Release 4.2 MP Japanese Extension
UNIX Time Sharing Operating System Phototypesetter
and C Compiler Edition # 7
USL Standard C Development Environment for the 860
Implementation of UNIX System V Release 4.0
Veritas File System (VxFS) Release 1.3 for UNIX
System V Release 4.2
XWIN Graphical Windowing System Release 3.0
XWIN Graphical Windowing System Release 4.0
XWIN Graphical Windowing System Release 4.0i
ATTACHMENT B
Treatment of Certain Prepayments and Rights
to Payment Specified in Item VII of Schedule 1.1(b)
Situation 1 - where the Seller customer contract [other than in Situation 3] involves a prepayment
and/or an accrued right to payment (collectively "prepayment") that applies to a mix of
UnixWare and non-UnixWare products.
Seller will send a notice requiring the customer to specify in writing (i) whether it wants any of
the prepayment to be allocated to the UnixWare products and (ii) if so, how much of such
prepayment should be so allocated. The notice shall state that if the customer does not respond
within 30 days after the date of transmission by Seller, none of such prepayment shall apply to
the UnixWare products. The notice shall also specify that any future prepayment under the
contract in question will not apply to UnixWare products, and that orders for UnixWare products
after the prepayment allocation is used up must be directed to Buyer.
If the customer elects a UnixWare allocation of $100,000 or more, or makes a UnixWare
allocation of an unspecified amount, Buyer will fulfill all of such customer's orders of UnixWare
products against the unused prepayment allocation (or prepayment, if no allocation is made).
Buyer will receive from Seller a payment reflecting a pro-rated portion of such prepayment
allocation (or such prepayment). Such payment shall be deemed to be royalties received by
Buyer for the UnixWare products in question.
If the customer allocates less than $100,000 of the prepayment to UnixWare products in response
to such notice, Buyer will fulfill all of such customer's orders for UnixWare products against the
prepayment and will received from Seller its actual and reasonable costs (including third party
royalties assumed by Buyer under this Agreement) of such fulfillment plus a markup of five
percent (5%).
Situation 2 - where Seller's customer's contract (other than in Situation 3) calls for prepayments
applicable to UnixWare products only.
If the prepayment is $100,000 or more, the roles of Seller and Buyer set forth in Situation 1 for
an allocation of $100,000 or more shall apply.
If the prepayment is less than $100,000, the roles of Seller and Buyer set forth in Situation 1 for
an allocation of less than $100,000 shall apply.
Situation 3 - Seller's customer contracts with Siemens-Rolm, TMAC, Microport, Tatung and Sysorex.
These contracts involve prepayments that may apply either to a mix of UnixWare and non-
UnixWare products (TMAC and Sysorex) or to UnixWare products alone. Irrespective of the
type of allocation, the roles of Seller and Buyer set forth for a UnixWare allocation of $100,000
or greater shall apply.
For a period of up to sixty (60) days after the Closing Date Buyer and Seller will cooperate to
attempt to identify additional ones of Seller's customers who have prepayments which could be
allocated to UnixWare products in the amount of $100,000 or more. For each of such additional
customers so identified, the roles of Buyer and Seller shall be as mutually agreed.
ATTACHMENT C
Unit Plan
Table A below represents Seller's forecast of the rates of shipments, through all appropriate
channels, of units of the following offerings of Unix System V, UnixWare, Eiger, MXU and
White Box software:
- Single user and multi-user versions
- Upgrades to existing units
- Processor upgrades
- Other components, specifically
- Software developers kit
- OnLine Data Manager
- Locus Merge
- All Units which Buyer receives payment for, directly or indirectly
Table A
Units (in thousands)
|
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
2002 |
SCO Shipments |
216.40 |
216.40 |
216.40 |
216.40 |
216.40 |
216.40 |
216.40 |
216.40 |
|
|
|
|
|
|
|
|
|
UnixWare binary - indirect |
57.50 |
99.10 |
131.50 |
107.00 |
39.20 |
0.00 |
0.00 |
0.00 |
UnixWare - OEM |
10.10 |
35.50 |
55.60 |
68.10 |
68.10 |
49.30 |
34.50 |
0.00 |
|
|
|
|
|
|
|
|
|
MXU Binary - indirect |
0.00 |
0.00 |
43.80 |
160.40 |
282.60 |
334.40 |
305.30 |
201.30 |
MXU - OEM |
0.00 |
0.00 |
13.90 |
45.40 |
91.90 |
148.00 |
186.50 |
233.20 |
|
|
|
|
|
|
|
|
|
WBOS Binary - indirect |
0.00 |
0.00 |
0.00 |
0.00 |
70.60 |
222.90 |
457.90 |
805.40 |
WBOS - OEM |
0.00 |
0.00 |
0.00 |
0.00 |
10.20 |
49.30 |
124.40 |
233.20 |
|
|
|
|
|
|
|
|
|
SVRX converted units |
0.00 |
33.80 |
69.80 |
108.40 |
149.50 |
193.30 |
239.90 |
289.60 |
|
|
|
|
|
|
|
|
|
SVRX remaining |
1072.00 |
1091.80 |
1112.00 |
1132.60 |
1153.60 |
1174.90 |
1196.60 |
1218.80 |
|
|
|
|
|
|
|
|
|
Total Unix Software Units |
1356.00 |
1476.60 |
1643.00 |
1838.30 |
2082.10 |
2388.50 |
2761.30 |
3197.90 |
|
|
Authored by: Anonymous on Monday, December 08 2003 @ 07:43 AM EST |
PJ, I just posted a link with a very interesting quote by Blake Stowell on the
previous story.
[ Reply to This | # ]
|
|
Authored by: moogy on Monday, December 08 2003 @ 08:10 AM EST |
This appears to be the amendments reported here:
http://biz.yahoo.com/e/031119/scox8-k.html
What I don't understand is why SCO is reporting to
the SEC in Nov. 2003, amendments for SCO/Novell
agreements made in 1995.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi
[ Reply to This | # ]
|
|
Authored by: DrStupid on Monday, December 08 2003 @ 08:12 AM EST |
Note:
"Seller and Buyer agree that the license that Seller is entitled to
exercise after Closing pursuant to Section 1.6 hereof is a right not sold to
Buyer and as such is a right retained by Seller."
i.e. the so-called "license back" of rights in UnixWare, whereby
Novell has the right to use, modify and distribute UW IP in its internal
business and in bundled products, is a right retained by Novell - that means
never sold to TSG. As TSG never owned this right, it would appear that TSG
cannot revoke or withdraw it.
The exact rights that Novell ended up retaining are detailed in the Techology
License Agreement posted previously on Groklaw.[ Reply to This | # ]
|
|
Authored by: jmccorm on Monday, December 08 2003 @ 08:34 AM EST |
Pamela,
I have to say that you and your site have been an inspiration to me. Thank you
very much for sharing your legal insight with us! You are WONDERFUL!
I am interested in computer law, and I had some questions. I am a highly skilled
31 year old UNIX systems administrator with a bachelor's degree. I make a
steady income approaching six digits. I've always said that I've wanted my
career to stay on a technical track, but it would probably be more precise to
say that I instead wanted to avoid a management track. (My boss isn't an expert
on these matters, but he says that I really SHOULD be a lawyer!)
I am interested in the area of law where it intersects with computers. It seems
chaotic and still a bit of a frontier. Challenge and chaos are job conditions
that interest me. But I'm uncertain on a number of issues.
This is probably my most important question. How does one make the leap into the
legal field? Is it a matter of applying at a law school? Becoming a technical
resource or researcher for a law firm? What are the avenues of approach? And are
there paths that would allow me to preserve something close to my existing
income during the process?
How long would the process take (and depending on what I want to become)? Of
course, I'm thinking of a position as a lawyer. But what about a paralegal,
like yourself? I can see that you're no slouch! Certainly, you are well
compensated? What are my options for the different positions in the legal
world?
How plausable is it that I could be involved in the intersection of law and
computers on the side of 'good'? I know that the world of law probably
doesn't make a distinction between good and evil (more rights vs no rights, or
lawful vs unlawful), but I'd rather be doing something more than chasing down
frivolous infringers of copyright for a large corporate master, or squelching
critics. Defending individuals, perhaps with novel defenses, would be
interesting, but I have a feeling that Joe Random isn't Joe Cash as well. Is it
tough to be a 'good lawyer', or maybe rephrased correctly, is it tough to be a
'good lawyer' and have some money?
I'm only 31, but am I too old to get onto law (be it because my mind isn't as
young, or because I would secretly be discriminated against)?
Are there any resources that you can point us to which would be helpful? Or are
you interested in creating a FAQ for those of us who are interested in pursuing
the legal profession?
I hope that you can take the time to answer some of these questions (I know that
I can't be the only one!). I'd really like to build a career path for myself
that I'm fairly certain won't end up in India. ;)[ Reply to This | # ]
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Authored by: rakaz on Monday, December 08 2003 @ 08:59 AM EST |
I think the important question relating to these new documents is "What did
The Santa Cruz Operation exactly buy from Novell?".
The original Asset
purchase schedule stated:
UNIX Source Code
Products
A. UnixWare 2.0 as described in the UnixWare 2.0 Licensing
Schedule and those products listed as "prior" products on such schedule
(includes source code updates where appropriate - i.e. UnixWare product
family).
B. UNIX SVR4.1 ES as described in the UNIX SVR4.1 ES Licensing
Schedule and those products listed as "prior" products on such
schedule.
C. UNIX SVR4.0 MP as described in the UNIX SVR4.0 MP
Licensing Schedule and those products listed as "prior" products on such
schedule.
D. Ancillary SVRx Products (a final list of which shall be
developed by the partied prior to the Closing)
Amendment No.1
changes this in a very important way:
UNIX and UnixWare
Source Code Products
A. UnixWare 2.0 as described in the UnixWare
2.0 Licensing Schedule and those products listed as "prior" products on such
schedule (includes source code updates where appropriate - i.e. UnixWare product
family).
B. UNIX SVR4.1 ES as described in the UNIX SVR4.1 ES Licensing
Schedule and those products listed as "prior" products on such
schedule.
C. UNIX SVR4.0 MP as described in the UNIX SVR4.0 MP
Licensing Schedule and those products listed as "prior" products on such
schedule.
D. The following foreign versions of UnixWare
software:
UnixWare 1.0 French, UnixWare 1.0 German, UnixWare 1.0 Italian,
UnixWare 1.0 Spanish, UnixWare 1.1 French, UnixWare 1.1 German, UnixWare 1.1
Italian, UnixWare 1.1 Spanish, UnixWare 1.1 Japanese, UnixWare 1.1 Chinese,
UnixWare 2.01 French, UnixWare 2.01 German, UnixWare 2.01 Italian, UnixWare 2.01
Spanish, UnixWare 2.01 Japanese
It appears that according to
this amendment Santa Cruz Operation did not purchase the rights to the
Ancillary SVRx Products. So, The SCO Group only bought SVR4.0, SVR 4.1
and UnixWare and not older versions of System V.
Also, older products
such as 32V are not even mentioned and it looks like they are also not part of
this contract. So, who gave The SCO Group the right to publish 32V these under a
BSD style license? [ Reply to This | # ]
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Authored by: Anonymous on Monday, December 08 2003 @ 11:30 AM EST |
The thing that strikes me is that Schedule 1.1(a) of the original was never
interpreted to convey any of the copyrights to SVRX - until this year.
That's because Schedule 1.1(b) specifically excluded all of the copyrights.
The new sections e and f that were added to section 1.2 here in Amendment 1
finally give Old SCO some very limited SVRX business entitlements, but imposes a
monthly reporting regime to keep Novell in control. Old SCO is allowed to keep
some of the SVRX royalties for additional CPU licensing, source code right to
use fees, and maintenance and support of the SVRX contracts. They also can keep
royalties earned from their own pre-existing UNIX source code license. Novell's
rights under section 4.16 remain essentially unchanged. Novell's Section 4.16
control of the licenses remains intact.
There was always a seperate attachment with the heading "Selling
Copyrights in Product(s) of the Business" that did not include any System
V OS copyrights, but did include the 5th, 6th, 7th, and 32V Operating Systems -
which surely were not contained or marketed in any 1995 Novell products.
When Amendment 2 B refers to SCO's SVRX rights, those would be the ones we've
already seen, plus these very limited new ones decribed here for the first time.
What copyrights were for sale, and which ones do they need to acquire this new
SVRX royalty business? Since Amendment 2 is the Magna Carta of SCO's copyrights
what are they? Why does Amendment 2 C make SCO's new rights terminable?
Copyrights like any other property right can be shared. We see here that Novell
retains a perpetual worldwide right to use all of the technology (trade secrets,
copyrights, and patents) that SCO acquired. These were never really strictly
speaking sold to Buyer or licensed-back. The non-compete clause was with
Tarantella, not Caldera. Novell signed the three-way contract with IBM too, and
waived any SCO attempt to terminate the AIX license.
I just can't see a clear-cut claim that Amendment 2 really gave SCO any claim
to the System V copyrights.
---
Each SOFTWARE PRODUCT shall become subject to this agreement on acceptance by
AT&T of a supplement executed by LICENSEE that indentifies such SOFTWARE
PRODUCT[ Reply to This | # ]
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Authored by: rakaz on Monday, December 08 2003 @ 02:58 PM EST |
The SCO Group bought the UNIX business from Santa Cruz Operation which it
bought earlier from Novell. To determine what rights the The SCO Group has in
respect to UNIX it is important to look at what Santa Cruz Operation bought from
Novell.
To begin we have to look at the Asset Purchase Agreement between
the Santa Cruz Operation and Novell. Right at the beginning, in the recitals it
defines what “the Business” is. This was later amended by Amendment 1 to the
Asset Purchase Agreement and should read:
A. Seller is engaged
in the business of developing a line of software products currently known as
Unix and UnixWare, the sale of binary and source code licenses to various
versions of Unix and UnixWare, the support of such products and the sale of
other products ("Auxiliary Products") which are directly related to UNIX and
UnixWare (collectively, the "Business").
Right now, this isn’t
important yet, but it will be referenced to later. So, for now, just keep this
section in mind.
Next thing we are going to look at is section 1.1 (a),
which reads:
Purchase and Sale of Assets. On the terms and
subject to the conditions set forth in this Agreement, Seller will sell, convey,
transfer, assign and deliver to Buyer and Buyer will purchase and acquire from
Seller on the Closing Date (as defined in Section 1.7), all of Seller's right,
title and interest in and to the assets and properties of Seller relating to the
Business (collectively the "Assets") identified on Section 1.1 (a) hereto.
Notwithstanding the foregoing, the Assets to be so purchased shall not include
those assets (the "Excluded Assets") set forth on Schedule 1.1
(b)
This section is very important because it tells us where we
can find the actual list of properties and assets that Novell is selling the
SCO. Everything listed on Schedule 1.1(a) is sold to SCO, everything listed on
Schedule 1.1(b) is kept by Novell.
Section 2.10 is also very important,
because it tells us where we can find a list of all rights to patents,
trademarks and copyrights that Novell owns. This doesn’t mean that everything in
this list will be sold to SCO. It’s just a list of everything that Novell owns.
It is important to have such a list because SCO needed to know that Novell owned
the rights in case of some other company claiming copyright to something that
SCO bought or licensed from Novell. In such a case SCO could simply point to
this Agreement and say: “Don’t blame us, Novell told us they owned
this.”.
To the knowledge of Seller, as of the date hereof,
Seller owns, co-owns or is licensed or otherwise entitled to use rights to all
patents, trademarks, trade names, service marks, copyrights, mask work rights,
trade secret rights, and other intellectual property rights and any applications
therefor, and all maskworks, net lists, schematics, technology, source code,
know-how, computer software programs and all other tangible information or
material, that are used in the Business as currently conducted (the "Seller
Intellectual Property Rights").
The Seller Disclosure Schedule lists, as of the
date hereof, (i) all patents, registered copyrights, trademarks, service marks,
mask work rights, and any applications therefor, included in the Seller
Intellectual Property Rights;
So, to find out what Novell could
have sold to SCO we need to look at the Seller Disclosure Schedule, which states
that “Attachment E to this Schedule contains a listing of Seller's copyright
registrations covering product(s) of the Business.”.
Attachment E
contains a fairly long list of all items to which Novell claimed copyright. Of
course this list only contains items related to “the Business” as defined in the
recitals. Other copyrights owned by Novell are not on this list.
This
list consists mostly of manuals and guides, for example: UNIX(R) SYSTEM V/386:
Programmer’s Guide and UNIX(R) SYSTEM V RELEASE 3.2: User's Guide. The list also
contains five software products to which Novell claimed
copyright:
Operating System Utility Programs - TXu 301
868
UNIX(R) Operating System Edition 5 and Instruction Manual - TXu 510
028
UNIX(R) Operating System Edition 6 and Instruction Manual - TXu 511
236
UNIX(R) Operating System Edition 32V and Instruction Manual - TXu 516
704
UNIX(R) Operating System Edition 7 and Instruction Manual - TXu 516
705
The next step I am going to make is to look at the Schedule
1.1(a) and (b) to determine what SCO actually bought from Novell. Again, this
list is fairly long and contains many different products. Section I of Schedule
1.1(a) was amended by Amendment 1 to the Asset Purchase Agreement and should
read:
All rights and ownership of UNIX, UnixWare and Auxiliary
Products, including but not limited to all versions of UNIX, UnixWare and
Auxiliary Products and all copies of UNIX, UnixWare and Auxiliary Products
(including revisions and updates in process), and all appropriate technical,
design, development, installation, operation and maintenance information
concerning UNIX, UnixWare and Auxiliary Products, including source code, source
documentation, source listings and annotation, engineering, notebooks, test data
and test results, as well as all reference manuals and support materials
normally distributed by Seller to end-users and potential end-users in
connection with the distribution of UNIX, UnixWare and Auxiliary Products, such
assets to include without limitation the following:
So, it
appears SCO buys all rights and ownership to certain products. This is also
important because this does not seem to include the copyrights to the source
code. I think, it only includes the rights to use the source code. This is very
important because the products that Novell sold also contained source code that
they did not own themselves, but was licensed from other companies. They bought
the product, everything they needed to market the product and the right market
the product. They did not buy the copyrights to the source code.
Section
V A of Schedule 1.1(b) was amended by Amendment 2 to the Asset Purchase
Agreement and should read:
A. 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.
It basically says that Novell will
keep all copyrights and trademarks, except for those which are needed by SCO to
“exercise its rights with respect to the acquisition of UNIX and UnixWare
technologies”.
This is fairly vague. First of all what are the
technologies they are referring to? Once again we are going to look at Schedule
1.1(a) I. Apart from the list of existing products, a list of products in
development and auxiliary products, it also contains a list of other
technologies. If one part of section I is marked as ‘other technologies’ it
would be safe to assume that the other parts of the section I are also
technologies.
Secondly, exactly which copyrights are sold to SCO? Only
copyrights that are needed by SCO to ‘exercise its rights’. The next question
would be ‘which rights are we talking about?’. Once again we need to look at
schedule 1.1(a):
All rights and ownership of UNIX, UnixWare and
Auxiliary Products…
I am not a layer, but I think it is safe to
assume that SCO would need the copyrights to the products listed in section I to
‘exercise all rights’.
Once again we need to look at which copyrights
are bought by SCO. Well, it is not that difficult actually. The Attachment E
already defines all the copyrights Novell owns that are related to “Product(s)
of Business”. Unfortunately for SCO, that list only contains five software
products:
Operating System Utility Programs - TXu 301
868
UNIX(R) Operating System Edition 5 and Instruction Manual - TXu 510
028
UNIX(R) Operating System Edition 6 and Instruction Manual - TXu 511
236
UNIX(R) Operating System Edition 32V and Instruction Manual - TXu 516
704
UNIX(R) Operating System Edition 7 and Instruction Manual - TXu 516
705
So, does SCO own the copyright to SVR4? From what I can
tell (and once again, IANAL and I may be completely wrong here) it does not. It
does own the copyrights to some older versions of UNIX, but not to the more
recent versions. [ Reply to This | # ]
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Authored by: pooky on Monday, December 08 2003 @ 04:15 PM EST |
Do a search up on EDGAR sometime at sec.gov for "caldera". They have tons of
filings littered with statements like this one:
CALDERA SYSTEMS,
INC.
Caldera Systems, Inc. (Nasdaq: CALD) is the "Unifying UNIX
with Linux for Business" technology leader in developing and marketing
successful Linux-based business solutions, including its award-winning
OpenLinux, NetWare for Linux, Linux technical training, certification and
support--with free 30-day phone support and on-site consulting. Caldera
OpenLearning Providers offer exceptional distribution-neutral Linux training and
certification based on Linux Professional Institute (LPI(TM))
certification
Caldera was FORMED to advance Linux as an operating
system for businesses. See here from same document:
Caldera, Inc. was
co-founded in 1994 by Ransom Love. Caldera Systems, Inc. was founded by Ransom
Love in 1998 to develop Linux-based business solutions. Based in Orem,
UT, Caldera Systems has offices and 1000+ resellers worldwide. For more
information, see www.calderasystems.com or in the US call 888-GO-Linux
(888-465-4689).
C'mon Darl give it up, IBM will hang you with this
stuff.
-pooky
PS: Here's the link:
http://www.sec.gov/Archives/edgar/data/1102542/000095013401000995/d8402
3e425.txt --- IANAL, etc... [ Reply to This | # ]
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