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The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Saturday, January 03 2004 @ 08:30 PM EST

Hans Stoop has been so creative. Look what he has done for Groklaw. The ASSET PURCHASE AGREEMENT BY AND BETWEEN THE SANTA CRUZ OPERATION, INC. AND NOVELL, INC. dated September 19, 1995, *plus* Amendments 1 and 2 merged with it.

The text of the original agreement has a white background, Amendment 1 has a blue background, Amendment 2 has a red background. Dots on a blue background are for text deleted from the APA by Amendment 1 and dots on a red background for text deleted by Amendment 2. If you hover over the dots, you can see the original text.

It's a masterpiece, but Geeklog chokes on the colors, so mathfox has set up a separate page for it. Go here. It's a work in progress, and you can all help by noting any corrections needed. I think it's a wonderful contribution, making it so much easier to figure out the complete picture. Thank you so much, Hans, for thinking to do this and for doing it for us. We'll continue to experiment with the colors and eventually we will be victorious, I hope, but I didn't want to wait because this is a real aid to researchers.

That would be us.


  


The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2 | 88 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: Gerry on Saturday, January 03 2004 @ 08:41 PM EST
Access Denied when I try to access the page with the documents.

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: shaun on Saturday, January 03 2004 @ 09:15 PM EST
Users don't have sufficient permissinion

--Shaun

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: Stefan on Saturday, January 03 2004 @ 09:30 PM EST
"Access Denied

Access to this page is denied. Either the page has been moved/removed or you do
not have sufficient permissions."

02.29GMT

[ Reply to This | # ]

I can see it ok 9:45 pm EST
Authored by: Anonymous on Saturday, January 03 2004 @ 09:45 PM EST
http://www.groklaw.net/staticpages/index.php?page=20040103144354238

[ Reply to This | # ]

Non-compete clause?
Authored by: darthaggie on Saturday, January 03 2004 @ 09:47 PM EST
Didn't SCO claim that Novell couldn't acquire SUSE because of a non-compete clause? Huh, wonder what this means:

2.8. Agreements.

With respect to the Business, Seller is not a party to, and the Business is not subject to:

(e) Any contract containing covenants purporting to limit Seller's freedom to compete in any line of business in any geographic area;

Gee, that doesn't look like a non-compete clause, but then again, IANAL, just a dumb Aggie...

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: Jude on Saturday, January 03 2004 @ 09:51 PM EST
Minor quibble: The dark blue "highlighting" makes the black text
very difficult to see. Perhaps a lighter color would be more suitable.

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: Bill The Cat on Saturday, January 03 2004 @ 09:58 PM EST
Amendment 2
C. Novell may execute a buy-out with a licensee without any approval or involvement of SCO, and will no longer be bound by any of the requirements stated in Section B. above, if: (i) SCO ceases to actively and aggressively market SCO's UNIX platforms; or (ii) upon a change of control of SCO as stated in schedule 6.3(g) of the Agreement.
Looking at the contract, I can't find the schedule 6.3(g). Did something get removed at some point in time?

---
Bill Catz -
"The number of UNIX installations has grown to ten, with more expected." -- UNIX Programmers Manual, 2nd Ed. June, 1972

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: Ruidh on Saturday, January 03 2004 @ 10:12 PM EST
I'm afraid I think this agreement sold the copyrights to Sys V. If it did not do so, there would be no purpose to this section.
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, worldwide license to (i) all of the technology included in the Assets and (ii) all derivatives of the technology included in the Assets, including the "Eiger" product release (such licensed back technology to be referred to collectively as "Licensed Technology").
If the agreement did not transfer the copyrights to SCO, there would be no need to license them back to Novell. Since contacts are interperted so as to give meaning to every section, the only conclusion I can reach is that copyrights were transferred. I think anyone who believes otherwise needs to explain exactly what Novell is licensing from SCO here.

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: SkArcher on Saturday, January 03 2004 @ 10:52 PM EST
Section 1.2b;

Seller shall be entitled to conduct periodic audits of Buyer concerning all royalties and payments due to Seller hereunder or under the SVRX Licenses, provided that Seller shall conduct such audits after reasonable notice to Buyer and during normal business hours and shall not be entitle to more than two (2) such audits per year. The cost of any such audio shall be borne by Seller, unless such audit reveals a payment shortfall in excess of 5% of amounts due hereunder in which case the cost of such audio shall be borne by Buyer.
So, if I am reading this right, Novell have the right to audit SCO with a view to determining the correctness of the SCOs Unix licensing rights for devinations of System V?

So, in theory, Novell could demand the infringing code from SCO to 'verify' the correctness of their claims with regards to Novells property?

[ Reply to This | # ]

Flyover Ellipsis...
Authored by: Mark Grosskopf on Saturday, January 03 2004 @ 10:53 PM EST
Many of the ellipsis replacing stricken text are longer than the little flyover
can present.

How about using a java popup window, like many sites offer for definitions,
specific help and reference text.

Just a suggestion...

MG

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: eamacnaghten on Saturday, January 03 2004 @ 10:56 PM EST
I can get to it. Nice piece of work...

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: Anonymous on Saturday, January 03 2004 @ 10:58 PM EST
OK this agreement applies to OLD SCO. Have we seen the agreement that
transferred rights between old SCO and New SCO? After all New SCO is really
Caldera, which isn't the buyer as referenced in this document. So when the
switching around and swapping between Old SCO and Caldera occurred, what did
THAT agreement say about intellectual property ownership?

[ Reply to This | # ]

SCO can't terminate IBM's AIX license?
Authored by: surak on Saturday, January 03 2004 @ 11:09 PM EST
(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.

IANAL, but it looks to me like SCO can't terminate or even modify IBM's SVRX license without prior written consent from Novell. You think they had Novell's consent when they terminated IBM's AIX license? $3 billion says no. :-P

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: The Mad Hatter r on Saturday, January 03 2004 @ 11:48 PM EST
Look at G and H:

G. Microsoft agreement (Xenix Agreement) - Xenix compatibility and per copy fee
agreement. Seller will agree to discuss with SCO Seller's interpretation of
this agreement.

H. Microsoft Agreement (Extra-Ordinary Discount) - Microsoft's additional
discount beyond 50%

I remember being on a newsgroup probably 5-10 years ago, and having a Microsoft
rep pop up and say that they were the largest distributor of Unix in the world.
Don't rememeber what newgroup, don't remember who it was or what year, but
this reminded me of that.

It would be interesting to see the Microsoft Unix contracts.

Wayne

[ Reply to This | # ]

Slashdot again
Authored by: rand on Saturday, January 03 2004 @ 11:58 PM EST
You should read the comments on Slashdot.

The denizens are being, well, courteous and respectful (mostly). It's almost Groklawish over there.

---
The Wright brothers were not the first to fly an aircraft...they were the first to LAND an aircraft. (IANAL and whatever)

[ Reply to This | # ]

Color change recommended
Authored by: Anonymous on Sunday, January 04 2004 @ 02:29 AM EST
What was described as a ``blue'' background is rendering as dark purple on my
browser/monitor. I'd siggest something much lighter like, say, cyan. Either
that or change the text color to something like yellow or white so it can be
read.

[ Reply to This | # ]

Who actually owns the copyright?
Authored by: davcefai on Sunday, January 04 2004 @ 04:40 AM EST
As a non-American non-lawyer I need to ask:
Does this mean that before the SCO-IBM litigation can proceed it may be
necessary to have an SCO-Novell case to determine who owns the copyright? Or is
it up to IBM to bring this up in court ("Your Honour, they don't own
it!")? Or can Novell start an action to stop SCO claiming rights that
Novell own?

A possible downside of all this is that the GPL may not be tested in court this
time round.

[ Reply to This | # ]

Color Recommendation
Authored by: Anonymous on Sunday, January 04 2004 @ 01:13 PM EST
I would like to suggest the follow for the background colors of the text:

blue - #AACCFF
red - #FFACAC

That should make it more readable.

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: tyche on Sunday, January 04 2004 @ 01:36 PM EST
I noticed 3 places near the beginning where it would appear that audit was misspelled. I also noted a couple of points. My text is Italic Bold. The rest is normal text:

ARTICLE I THE ACQUISITION 1.2. Payments. Seller and Buyer further acknowledge and agree that Seller is retaining all rights to the SVRX Royalties notwithstanding the transfer of the SVRX Licenses to Buyer pursuant hereto, and that Buyer only has legal title and not an equitable interest in such royalties within the meaning of Section 541(d) of the Bankruptcy Code.

Point 1. Does this mean that, should SCOG fold, that all that could be passed to either Canopy or IBM would be the Licensing permissions (ie: the ability to collect and pass on royalties of Unixware?). Or would the whole thing go back to Novell.

(sp?) The cost of any such audio audit?

(sp?) The cost of any such audio shall be borne by Seller, unless such audit reveals a payment shortfall in excess of 5% of amounts due hereunder in which case the cost of such audio shall be borne by Buyer. (Underlined words are questionable)

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. Point 2. This would seem to support point 1.

Craig

(Tyche)

---
"The greatest enemy of knowledge is not ignorance, it is the illusion of knowledge."
Stephen Hawking

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: the_flatlander on Sunday, January 04 2004 @ 04:26 PM EST
Oh, my. How cool!

(I've got soooo much to be doing... but I can't take my eyes off this.)

Thank you Hans Stoop. Thanks, PJ.

TFL

[ Reply to This | # ]

Typo (?) in Schedule 1.1(b) Excluded Assets
Authored by: Anonymous on Sunday, January 04 2004 @ 05:17 PM EST
III. TUCEDO Transaction Processing

in my recollection the system was called TUXEDO so the line should read:

III. TUXEDO Transaction Processing

sorry to be pedantic. This is really very useful. Contrats to the editor...

[ Reply to This | # ]

Corrections to: The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: dex~ on Monday, January 05 2004 @ 02:44 AM EST
More corrections to OCR (assumption ;) ). After a quick scan of the original
text of these agreements and ammendments, I think these corrections and the ones
above about the word "audio -> audit" in 1.2(b) would also apply
to the original.

1.3 (a)(iv) Assumption of Obligation. Tot he extent that an order...
"Tot he" should be "To the"


1.4 The second sentence (I believe it's the second one...)
reads: "In the event that notwithstanding the efforts of Selle and
Buyer"
There should be an "r" after "Selle".

2.8 (c) "... Seller during t he twelve-month period ended July 31, 1995
exceeded 31,500,000"
"t he" should be "the" and "31,500,000"
should be "$1,500,000"

2.9 (b)(iv) No audio or other examination
"audio" should be "audit"

FYI: I compared these items to the PDF for possible mistakes in the original
document.

These are just the ones that popped out at me while I was reading throught the
text. I only made it to Article V. So this is in no way a complete or
comprehensive list of all errors.

Dex

[ Reply to This | # ]

SCO not allowed to license SVRx!
Authored by: whoever57 on Monday, January 05 2004 @ 02:38 PM EST
Perhaps this is the key to why Novell owns the copyrights.

Section 4.16 states that SCO does not have any substantial rights to licesne
SVRx -- given this, why would SCO need the copyrights for SVRx?

Here is the text:
"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."


---
-----
For a few laughs, see "Simon's Comic Online Source" at
http://scosource.com/index.html

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: PJP on Thursday, January 08 2004 @ 12:12 PM EST
Looking at the merged version of the Unix aquisition docum ent, in schedule 1.1(a) V A (excluded assets) we see the following:

    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.

This is going to take a lawyer (or two, or three...) to sort out - maybe even a judge.

The interesting part is what copyrights did Novell actually own at the time? The Sys. V code carried AT&T copyright notices, and was presumably registered with the copyright office. Did Novell change all those notices, and did it re-register with the coyright office? If not, although it may have had the legal right to the copyrights, they may have still been with AT&T until Novell actually claimed them. So at the time of the contract, there may have been no copyright owned by Novell to transfer.

This could well be the crux of Novell's claim to now own them.

IANAL etc....

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: telamonides on Thursday, February 12 2004 @ 11:01 AM EST
could someone please consider changing the color of the font to white on those
passages with the colored backgrounds? it is almost impossible to see them.
thank you.

[ Reply to This | # ]

The SCO-Novell Asset Purchase Agreement with Amendments 1 & 2
Authored by: wvhillbilly on Wednesday, April 28 2004 @ 06:23 PM EDT
From SCO's answer to IBM's second amended counterclaims:
84. Admits the existence of the letter of June 12, 2003 but denies any right in Novell to waive or revoke SCO's rights and denies any legal or factual basis for the letter and denies the remaining allegations of P.84 not specifically admitted herein.
From the Asset Purchase Agreement between Novell and Santa Cruz Operation, section 4.16B:
(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. [Emphasis added]
Looks to me like the above is all the authority and legal basis novell needs to take the action (overriding SCO's termination of IBM's SVRX license) it did, and this very section was referenced in Novell's letter of June 12 (below):
Gentlemen:

Reference is made to the following:

- Asset Purchase Agreement by and between The Santa Cruz Operation Inc. and Novell, Inc., dated as of September 19, 1995, and more particularly to section 4.16(b) of that agreement;
- Amendment No. X to software agreement SOFT-00015...

and two letters...

How can SCO say Novell has no legal authority or basis to take the action they did when that authority is cited right in the letter telling SCO what they did? Does SCO think they can just pretend 4.16(B) doesn't exist and that'll make it go away? Or are they even crazier than I thought they were?

---
What goes around comes around, and it grows as it goes.

[ Reply to This | # ]

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