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| Caldera, Inc./ Caldera Systems, Inc. 1998 Asset Purchase and Sale Agreement |
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Tuesday, April 06 2004 @ 10:34 AM EDT
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One of the hardest parts of the SCO story is figuring out exactly who they are, thanks to
all the name changes. By that I mean, they have just announced their 25th birthday, but
their SEC filings date the company's start from 1998. For example, their April 2003 10Q
filing said:
"The Company was originally incorporated as Caldera Systems, Inc. ('Caldera
Systems'), a Utah corporation, on August 21, 1998, and reincorporated as a
Delaware corporation on March 6, 2000. In March 2000, Caldera Systems
completed an initial public offering of its common stock."
2000 is also the year that the DR-DOS lawsuit between Caldera, Inc. and Microsoft was
settled. SCO said in discovery that they were not party to the DR-DOS lawsuit. SCO Group
appears to be claiming to be oldSCO, when saying they will celebrate their 25th year. But
oldSCO is now Tarentella, and that company exists to this day. And Caldera, Inc. turned
over assets to Caldera Systems, Inc., and they later became the SCO Group, so I am puzzled
as to why they disclaim being party to the DR-DOS lawsuit. They seem to be claiming
parentage from only one parent, so to speak. However, I readily acknowledge I have not
yet figured it all out yet but am putting up research results as I find them.
Here's one piece in figuring out the puzzling history, the Caldera, Inc./Caldera Systems,
Inc. 1998 Asset Purchase and Sale Agreement. This isn't anything to do with Novell or oldSCO.
It's Caldera to Caldera. But it helps us figure out the names.
Note that Bryan Sparks was CEO of Caldera, Inc., and Ransom Love was CEO of
Caldera Systems at the time of this agreement.
This contract is also on Findlaw. Just go here and search in Utah for Caldera:
http://contracts.corporate.findlaw.com/agreements/sco/caldera.apa.1998.09.01.html
The agreement makes reference to exhibits, but I haven't found them yet. This
agreement was filed with the SEC in 2000, and you can find it at
http://www.sec.gov/Archives/edgar/data/1102542/0001035704-00-000008-index.html ,
but the exhibits were filed separately. Here is what they filed on that subject:
"Caldera Systems, Inc. has filed with the Securities and Exchange Commission
a registration statement on Form S-1, including exhibits, schedules and
amendments filed with the registration statement, under the Securities Act with
respect to the common stock to be sold in this offering. This prospectus does
not contain all of the information set forth in this registration statement. For
further information about Caldera Systems, Inc. and the shares of common stock
to be sold in the offering, please refer to this registration statement. For
additional information, please refer to the exhibits that have been filed with
our registration statement on Form S-1.
"You may read and copy all or any portion of the registration statement or
any other information Caldera Systems files at the Securities and Exchange
Commission's public reference room at 450 Fifth Street, N.W., Washington, D.C.,
20549. You can request copies of these documents upon payment of a duplicating
fee, by writing to the Securities and Exchange Commission. Please call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information
about the public reference rooms. Caldera Systems, Inc.'s Securities and
Exchange Commission filings, including the registration statement, will also be
available to you on the Securities and Exchange Commission's Web site
(http://www.sec.gov)."
There is a September 1, 1998 amendment to this Asset Purchase and Sale Agreement
filed as well, which I will put below the agreement.
On this page
( http://www.sec.gov/Archives/edgar/data/1102542/0000950134-00-001452-index.html )
which is the first stock offering filing, you will find this description of their company:
"CORPORATE INFORMATION
We began operations in 1994 as Caldera, Inc. In July 1996, Caldera, Inc.
acquired an additional business line which was not engaged in developing and
marketing Linux software. Caldera, Inc. subsequently made the strategic
determination to separate its two business lines into separate entities and,
under an asset purchase agreement, dated as of September 1, 1998, as amended,
sold the assets relating to its business of developing and marketing Linux
software to Caldera Systems, Inc., a newly formed corporation. Caldera Systems,
Inc. has operated as a separate legal entity engaged in developing and marketing
Linux software since September 1, 1998. Caldera Systems, Inc. was incorporated
in Utah in August 1998. We intend to reincorporate in Delaware prior to the
closing of this offering."
******************************************************************
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into this 1st day of September 1998, by and between CALDERA SYSTEMS,
INC., a Utah corporation ("Purchaser") and CALDERA, INC., a Utah corporation
("Seller").
RECITALS
A. Seller is in the business of developing, marketing, licensing, selling
and distributing Linux computer software and other software, products and
services relating to Linux (the "Business"). Seller desires to sell to Purchaser
all of Seller's assets used in or relating to the Business.
B. All of the assets Seller uses in or which relate to the Business
consist of the following, which shall hereinafter collectively be designated the
"Assets":
(i) Accounts Receivable - all accounts receivable of Seller as of
September 1, 1998, identified in and that will be the subject of the Bill
of Sale set forth in Exhibit "A" attached hereto,
(ii) Inventory - the items of inventory identified in and that will be
the subject of the Bill of Sale set forth in Exhibit "A" attached hereto,
(iii) Tangible Personal Property - the items of tangible personal
property in and that will be the subject of the Bill of Sale set forth in
Exhibit "A" attached hereto,
(iv) Customer Lists, Etc.- all of Seller's customer lists and
addresses of Seller's past, present and potential customers which will be
the subject of the Bill of Sale set forth in Exhibit "A" attached hereto,
(v) Contracts - certain rights, services and contractual obligations
under the contracts which were used by the Business and which Seller has
entered into identified in and that will be the subject of the Contracts
Assignment and Assumption Agreement set forth in Exhibit "B" attached
hereto.
(vi) Trademarks - all right, title and interest of Seller in and to
the trademarks, service marks, trade names, logos, and product names and
the goodwill of the business associated therewith (the "Trademarks") as
identified in and that will be subject of the Trademarks Assignment
Agreement set forth in Exhibit "C" attached hereto,
(vii) Copyrights - all right, title and interest of Seller in and
to the copyrights, copyright applications, and copyright registrations (the
"Copyrights") identified in and what will be subject of the Copyright
Assignment Agreement set forth in exhibit "D" attached hereto,
(viii) Patents - all right, title and interest of Seller in and to
the patents and patent applications (the "Patents") identified in and that
will be subject of the Patent Assignment Agreement set forth in Exhibit "E"
attached hereto,
(ix) Intellectual Property - any other intellectual property used
in or relating to the Business (other than the Trademarks, Copyrights and
Patents) of Seller including, without limitation, all trade secrets,
proprietary technology, and confidential information, (the "Intellectual
Property") identified in and that will be subject of the Intellectual
Property Assignment Agreement set forth in Exhibit "F" attached hereto, and
(x) Numbers, Permits and Licenses - Seller's telephone and fax
numbers, permits and business licenses as identified in Exhibit "G"
attached hereto.
C. Purchaser desires to purchase the Assets from Seller and Seller
desires to sell the Assets to Purchaser, all as provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
SECTION 1 -- TERMS OF PURCHASE
1.1 Purchase of Assets. In reliance on the representations and warranties
contained herein and in consideration of the purchase price as set forth in
section 1.3 hereof and subject to all other terms and conditions hereof, at the
Closing (as defined in section 2.1), and effective as of the Effective Date (as
defined in Section 2.1), Purchaser shall purchase and accept, and Seller shall
sell, assign, transfer, convey and deliver to Purchaser, all of Seller's rights,
titles and interests in and to all the Assets (defined in Recital Paragraph B, above).
1.2 No Assumption of Obligations, Liabilities and Indebtedness.
(a) Except for those obligations assumed pursuant to the Contracts
Assignment and Assumption Agreement (see Exhibit "B" attached hereto),
Purchaser shall not assume or in any way become liable for any obligations or
liabilities of or relating to the Assets or Seller.
(b) Except as expressly set forth in Section 1.2(a) hereof,
Purchaser does not by this Agreement, or otherwise, assume, become liable for
or agree to pay any obligation, liability or indebtedness of Seller which may
now exist or which may arise in the future, whether associated with the Assets,
the Business, Seller or otherwise.
(c) Any obligations, liabilities or indebtedness of Seller including,
but not limited to, contingent liabilities, such as, but not limited to,
liabilities relating to patent, trademark, copyright or other business
infringement, environmental or hazardous waste liability, tort liability,
employment discrimination, errors and omissions liability, employee payroll and
employee benefits liability, liability under employment agreements or pertaining
to covenants not to compete, obligations arising out of or relating to pension
plans and other retirement plans, and federal, state or local taxes, shall
remain the sole and separate responsibility of Seller, and Seller hereby agrees
to indemnify, defend and hold Purchaser harmless from and against any and all
such obligations, liabilities or indebtedness.
(d) Seller shall not assume or in any way become liable for any
obligations or liabilities of Purchaser relating to the Assets, the Business or
Purchaser that arise from the business and operations of Purchaser and that
occur in whole from and after the Closing.
1.3 Purchase Price and Allocation of Purchase Price. Subject to upward
adjustment as provided in this Section 1.3, the purchase price for the Assets
(the "Purchase Price") shall be Fifteen Million and no/100 Dollars
($15,000,000.00) and the Purchase Price shall be allocated to the Assets as set
forth on Exhibit "H" attached hereto. It is anticipated that the Purchaser will
obtain an appraisal or valuation of the Assets, as of the date hereof, for tax,
accounting or other purposes. In the event such an appraisal or valuation is
obtained and the fair market value of the Assets, as of the date hereof, is
greater than the Purchase Price, then the Purchase Price shall be increased to
the fair market value of the Assets; provided, however, any such appraisal or
valuation must be obtained before December 31, 1998, and any increase in the
Purchase Price shall not be due and payable until the later of (i) December 31,
1998 or (ii) sixty days after the receipt by Purchaser of said appraisal or
valuation.
1.4 Payment of Purchase Price. The Purchase Price shall be paid by
Purchaser by:
(a) delivering to the Seller a promissory note substantially in
the form of Exhibit "I" attached hereto, made by the Purchaser to the order of
the Seller in the original principal amount of $14,963,826 ($15,000,000 less
$36,174 of liabilities assumed as set forth in Section 1.4(b)) (the "Promissory
Note"), together with a Security Agreement substantially in the form of Exhibit
"J" attached hereto; and
(b) assuming liabilities in the amount of $36,174 as identified
in the Contracts Assignment and Assumption Agreement attached hereto as Exhibit
"B".
1.5 Taxes. The Purchase Price shall be exclusive of any sales or
similar taxes that may be imposed. Seller shall be solely responsible for any
sales or similar taxes that may be imposed on the purchase and sale of the
Assets contemplated by this Agreement.
1.6 Documentation of Sale of Accounts Receivable, Inventory and
Tangible Personal Property. At the Closing Seller shall execute and deliver to
Purchaser the Bill of Sale attached hereto as Exhibit "A" (the "Bill of Sale")
to evidence and effect the transfer of the accounts receivable, inventory and
other tangible personal property identified in Exhibit "A".
1.7 Documentation of Assignment and Assumption of Contracts. At the
Closing Seller and Purchaser shall execute and deliver to the other the
Contracts Assignment and Assumption Agreement attached hereto as Exhibit "B" to
evidence and effect the assignment and assumption of said contracts.
1.8 Documentation of Assignment of Trademarks. At the Closing Seller
and Purchaser shall execute and deliver to the other the Trademarks Assignment
Agreement attached hereto as Exhibit "C" to evidence and effect the assignment
of the Trademarks.
1.9 Documentation of Assignment of Copyrights. At the Closing Seller
and Purchaser shall execute and deliver to the other the Copyright Assignment
Agreement attached hereto as Exhibit "D" to evidence and effect the assignment
of the Copyrights.
1.10 Documentation of Assignment of Patents. At the Closing Seller
and Purchaser shall execute and deliver to the other the Patent Assignment
Agreement attached hereto as Exhibit "E" to evidence and effect the assignment
of the Patents.
1.11 Documentation of Assignment of Intellectual Property. At the
Closing Seller and Purchaser shall execute and deliver to the other the
Intellectual Property Assignment Agreement attached hereto as Exhibit "F" to
evidence and effect the assignment of the Intellectual Property. Seller agrees
to execute any and all such further or other documents that Purchaser prepares
which are reasonably necessary to further evidence or effect the purpose and
intention of this Agreement.
1.12 Documentation of Assignment of Numbers, Permits and Licenses.
At the Closing Seller shall assign and transfer to Purchaser the telephone and
fax numbers, permits and business licenses as identified in Exhibit "G"
attached hereto.
1.13 Bulk Transfer Compliance. Purchaser hereby waives compliance by
Seller with the provisions of the Utah or other applicable "bulk transfer"
statutes. Seller hereby indemnifies and agrees to defend and hold Purchaser
harmless from and against any liability or obligation to creditors of Seller or
to others that may result from failure to comply with the Utah or other
applicable "bulk transfer" laws in connection with the purchase and sale of the
Assets.
SECTION 2 - THE CLOSING
2.1 Closing. The closing of the transaction contemplated by this
Agreement (the "Closing") shall be held at the office of Seller in Orem, Utah,
at 11:00 a.m. local time, on September 1, 1998, or at such other time or place
as the parties may hereafter agree in writing. That date, or if the Closing is
advanced or postponed under this Section 2.1, then notwithstanding the date to
which it is advanced or postponed, the effective date of the Closing shall be
12:01 a.m. on September 1, 1998, and is in this Agreement designated the
"Effective Date."
2.2 Events at the Closing. The following events shall occur at the
Closing, each of which shall be a condition precedent to each of the others and
all of which shall be deemed to have occurred concurrently:
Seller's Deliverables
(a) Seller shall deliver possession of its business premises to
purchaser and in connection therewith, shall provide Purchaser with keys to the
Leasehold Premises, all as shall be allowed and agreed by Seller's Landlord;
(b) Seller shall execute and deliver to Purchaser the Bill of
Sale (see Exhibit "A" attached hereto);
(c) Seller shall execute and deliver to Purchaser the Contracts
Assignment and Assumption Agreement (see Exhibit "B" attached hereto);
(d) Seller shall execute and deliver to Purchaser the
Trademarks Assignment Agreement (see Exhibit "C" attached hereto);
(e) Seller shall execute and deliver to Purchaser the
Copyrights Assignment Agreement (see Exhibit "D" attached hereto);
(f) Seller shall execute and deliver to Purchaser the
Patent Assignment Agreement (see Exhibit "E" attached hereto);
(g) Seller shall execute and deliver to Purchaser the
Intellectual Property Assignment Agreement (see Exhibit "F" attached hereto);
(h) Seller shall execute and deliver to Purchaser an assignment
and transfer of the telephone and fax numbers, permits and business licenses as
identified in Exhibit "G" attached hereto;
(i) Seller shall execute and deliver to Purchaser such other
documents as may be reasonably required by Purchaser to evidence Seller's
compliance with any covenant and condition herein set forth or to complete the
transactions herein contemplated;
PURCHASER'S DELIVERABLES
(j) Purchaser shall execute and deliver to Seller the
Promissory Note (see Exhibit "I" attached hereto);
(k) Purchaser shall execute and deliver to Seller the
Security Agreement (see Exhibit "J" attached hereto);
(l) Purchaser shall execute and deliver to Seller a copy of the
Contracts Assignment and Assumption Agreement (see Exhibit "B" attached hereto);
(m) Purchaser shall execute and deliver to Seller a copy of the
Trademarks Assignment Agreement (see Exhibit "C" attached hereto);
(n) Purchaser shall execute and deliver to Seller a copy of the
Copyrights Assignment Agreement (see Exhibit "D" attached hereto);
(o) Purchaser shall execute and deliver to Seller the Patent
Assignment Agreement (see Exhibit "E" attached hereto);
(p) Purchaser shall execute and deliver to Seller the
Intellectual Property Assignment Agreement (see Exhibit "F" attached hereto);
(q) Purchaser shall execute and deliver to Seller an acceptance of
the assignment and transfer of the telephone and fax numbers, permits and
business licenses as identified in Exhibit "G" attached hereto;
(r) Purchaser shall execute and deliver to Seller such other
documents as may be reasonably required by Seller to evidence Purchaser's
compliance with any covenant and condition herein set forth or to complete the
transactions herein contemplated.
SECTION 3 - REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Seller. Except as set forth in the
Schedule of Seller's Exceptions in Exhibit "K" attached hereto, Seller
represents and warrants to Purchaser as follows:
(a) Sale of All Assets. By this Agreement and the instruments
contemplated hereby, Seller is transferring to Purchaser all of the assets of
Seller that are used in the Business.
(b) Title to Assets; Liens. Seller has good and marketable title to
the Assets and none of the Assets are subject to any mortgage, pledge, lien,
security interest, lease, charge, claim or encumbrance. Neither the Seller nor
any of Seller's affiliates use any asset, other than the Assets, in the
Business.
(c) Litigation. There is no material suit, action, litigation
or other proceeding or governmental or administrative investigation or inquiry
pending or threatened against Seller, the Business, and/or the Assets, which, if
decided adversely to the interests of Seller, would prevent or prohibit Seller
from transferring the Assets, free and clear from any security interests,
liens, charges, claims or other encumbrances of any nature whatsoever or from
otherwise complying in full with the provisions of this Agreement.
(d) Authorization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Utah. Seller has
all the requisite corporate and legal power and authority to own, lease and
operate the Assets as currently owned, leased and operated. Seller is duly
licensed, authorized and qualified to transact business and is in good standing
in Utah.
(e) Execution and Enforceability. This Agreement, the Bill of Sale,
the Contracts Assignment and Assumption Agreement, Trademarks Assignment
Agreement, Copyrights Assignment Agreement, Patent Assignment Agreement, the
Intellectual Property Assignment Agreement (see Exhibits "A"
through "F", respectively) and any other document required to be executed by
Seller at the Closing, will, when duly executed and delivered by Seller,
constitute valid and binding obligations of Seller, enforceable against Seller
in accordance with their respective terms.
(f) Seller's Records. In contemplation of this Agreement, Purchaser
has had access to Seller's files, documents and business records. Seller agrees
to keep and make available to Seller and its representatives during business
hours with reasonable notice, all of its files, documents and business records
relating to any of its present customers and past customers within the last
three (3) years (the "Records"). Seller may examine and make copies of the
Records, provided Seller agrees to and Seller hereby does agree to keep
confidential all confidential and proprietary information and trade secrets, if
any, in the Records. Nothing in this Section 3.1(f) shall require Seller to
retain any of the Records beyond the period for which they must be maintained
pursuant to applicable tax laws and regulations.
3.2 Representations and Warranties of Purchaser. Except as set forth in
the Schedule of Purchaser's Exceptions in Exhibit "L" attached hereto, Purchaser
represents and warrants to Seller as follows:
(a) Authorization. Purchaser is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Utah and
has all necessary corporate power and corporate authority to consummate the
transactions contemplated herein. This Agreement, and the transactions
contemplated herein, have been duly authorized by all necessary corporate action
on the part of Purchaser.
(b) Execution and Enforceability. This Agreement and any other
documents required to be executed by Purchaser at the Closing will, when duly
executed and delivered by Purchaser constitute valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with their respective
terms.
(c) Compliance with Other Instruments; Consents. Purchase is not in
material violation of any material agreement, instrument, judgment, decree or
order applicable to Purchaser, and to Purchaser's best knowledge and belief, of
any material statute, rule or governmental regulation applicable to Purchaser.
The execution, delivery and performance of this Agreement by Purchaser and the
transactions contemplated hereby will not result in any material violation of,
be in conflict with or constitute a material default under any such material
agreement, instrument, judgment, decree or order or, to the best knowledge and
belief of Purchaser, of any such material statute, rule or governmental
regulation. No consent of any vendor, lessor, lender or creditor of Purchaser,
or any other person, is necessary in order for Purchaser to consummate this
Agreement or the transactions contemplated hereby in accordance with
all of the provisions herein contained.
SECTION 4 -- COVENANTS OF SELLER AND PURCHASER
4.1 Covenants of Seller. Seller hereby covenants to and agrees with
Purchaser that:
(a) Maintenance of Assets. Prior to the Closing, Seller shall
maintain the Assets in customary repair, order and condition, and will maintain
insurance thereon in such amounts and of such kinds as is and currently in
effect.
(b) Maintenance of Free and Clear Title. Prior to the Closing,
Seller shall not mortgage, pledge or subject to any lien, charge, claim or
encumbrance any of the Assets or transfer, convey or lease any of the Assets or
any of Seller's rights, titles or interests therein, outside of the ordinary
course of business.
(c) Conduct of the Business. Prior to the Closing, Seller shall
conduct the activities of the Business in the ordinary, normal and customary
course and manner, keep proper business and accounting records, and, both before
and at all times after the Closing, use Seller's best efforts to preserve the
Business and its material customers intact and preserve for and make available
to Purchaser all of Seller's customers and the goodwill of the Business and the
goodwill of the Clients, customers, distributors and others having business
material relationships with the Business.
(d) Representations and Warranties True at Closing. If any
representation or warranty of Seller set forth in this Agreement becomes
inaccurate in any material respect at or before the Closing, Seller shall
immediately inform Purchaser in writing of the particulars in which any such
warranty or representation is no longer accurate. Despite such disclosure by
Seller, any such material inaccuracy shall constitute a failure of the
conditions precedent to the obligations of Purchaser as set forth in Section 6.1
hereof, and Purchaser shall have the right and option either to waive such
condition or to terminate this Agreement.
4.2 Covenants of Purchaser. Purchaser hereby covenants to and agrees with
Seller that if any representation or warranty of Purchaser set forth in this
Agreement becomes inaccurate in any material respect at or before the Closing,
Purchaser shall immediately inform Seller in writing of the particulars in which
any such warranty or representation is no longer accurate. Despite such
disclosure by Purchaser, any such material inaccuracy shall constitute a failure
of the conditions precedent to the obligations of Seller as set forth in Section
6.2 hereof, and Seller shall have the right and option either to waive such
condition or to terminate this Agreement.
SECTION 5 - SPECIAL PROVISIONS
5.1 Seller's Employees. All employees of Seller shall be terminated, as of
or before the Effective Date. Purchaser shall not be responsible for, and Seller
agrees to indemnify, defend and hold harmless Purchaser from and against any and
all claims, losses, damages, fees, costs or liabilities that arise or accrue as
a direct or indirect result of or in connection with Seller's prior employment
of or Seller's termination of the employment of Seller's Employees, including,
but not limited to, any claims or wrongful or unlawful termination or discharge
that are threatened or brought by Seller's Employees. Nothing contained herein
shall be construed as an agreement by Purchaser to provide employment for any of
Seller's Employees or, should Purchaser determine to employ any of Seller's
Employees after the Effective Date, to continue the employment of any Seller's
Employees to the extent Purchaser determines, for any reason, that such employee
does not meet Purchaser's standards of performance or productivity or that such
employee is no longer needed or desired as an employee of Purchaser.
SECTION 6 - CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to the Obligations of Purchaser. The obligation
of Purchaser to purchase the Assets and to consummate the transactions
contemplated hereby is subject to fulfillment by Seller prior to or at the
Closing of all of the conditions set forth in this Section 6.1. Purchaser may
waive any or all of said conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by Purchaser of any other condition or of its other rights or remedies, at law
or in equity.
(a) Seller's Representations and Warranties True at Closing. All
representations and warranties of Seller contained in this Agreement, the
Contracts Assignment and Assumption Agreement, Trademarks Assignment Agreement,
Copyrights Assignment Agreement, Patent Assignment Agreement, the Intellectual
Property Assignment Agreement (see Exhibits "A" through "F", respectively) and
any other written document, agreement or statement to be delivered to Purchaser
by Seller at or before Closing pursuant to this Agreement, shall be accurate in
all material respects on and as of the Effective Date as though such
representations and warranties were made at and as of the Closing Date.
(b) Authorization. All material proceedings required to be taken and
all consents required to be obtained in connection with the transactions
contemplated by this Agreement, shall have been taken, completed or obtained, as
the case may be, and all documents incident thereto shall be reasonably
satisfactory in form and substance to Purchaser, who shall have received
originals or certified or other copies of all of such documents as Seller may
reasonably request.
(c) No Insolvency Action. No petition in bankruptcy, insolvency
proceeding or a petition for reorganization or for the appointment of a
receiver or trustee shall have been filed by or against Seller.
6.2 Conditions Precedent to the Obligations of Seller. All
obligations of Seller under this Agreement are subject to fulfillment by
Purchaser prior to or at the Closing of all of the conditions set forth in this
Section 6.2. Seller may waive any or all of said conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Seller of any other condition or of Seller's other
rights or remedies, at law or in equity.
(a) Purchaser's Representations and Warranties True at Closing.
All representations and warranties of Purchaser contained in this Agreement or
in any written statement delivered to Seller by Purchaser pursuant to this
Agreement shall be true and correct in all material respects on and as of the
Effective Date as though such representation and warranties were made at and as
of the Effective Date.
(b) Performance Agreements. Purchaser shall have performed all
obligations and agreements and complied with all covenants and conditions
contained in this Agreement to be performed and complied with by Purchaser on
or prior to the Effective Date.
(c) Authorization. All corporate and other proceedings required
to be taken by Purchaser and all consents required to be obtained in connection
with the transactions contemplated by this Agreement, shall have been taken,
completed or obtained, as the case may be, and all documents incident thereto
shall be reasonably satisfactory in form and substance to Seller, who shall
have received originals or certified or other copies of all of such documents
as Seller may reasonably request.
(d) No Litigation. No action or proceeding shall be pending or
threatened to restrain or prevent the carrying out of the transactions
contemplated hereby.
SECTION 7 - TERMINATION
7.1 Right to Terminate Agreement. This Agreement may be terminated
upon the occurrence of any of the following events:
(a) by Purchaser, by written notice from Purchaser to Seller,
if any of the conditions set forth in Section 6.1 hereof have not been
fulfilled by the Closing;
(b) by Seller, by written notice from Seller to Purchaser, if
any of the conditions set forth in Section 6.2 hereof have not been fulfilled
by the Closing;
(c) by Seller or Purchaser, by written notice to the other, if
the Closing shall not have been held prior to September 30, 1998, or such later
date as the parties shall mutually agree in writing; or
(d) the parties shall mutually agree in writing to terminate
this Agreement.
7.2 Effect of Termination. Upon termination of this Agreement
pursuant to Section 7.1 hereof, all obligations of the Parties pursuant to this
Agreement shall terminate and shall be of no further force and effect such that
Purchaser shall have no further obligations to Seller and Seller shall have no
further obligations to Purchaser, except that Purchaser shall not use and shall
keep confidential any and all information, customer lists, customer addresses,
supplier addresses, price lists, agreements, trade secrets and/or business
plans of Seller relating to the Business.
SECTION 8 - GENERAL
-------------------
8.1 Costs. The parties shall each pay their own costs and expenses
(including attorneys' fees and accountants' fees) incurred or to be incurred by
them in negotiating and preparing this Agreement and in closing and carrying
out the transactions contemplated hereby.
8.2 Headings. The section and other headings of this Agreement are
included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
8.3 Entire Agreement; Modification. This Agreement (including the
recitals A through C hereof and Exhibits "A" through "L" attached hereto and
the representations and warranties set forth herein), constitute the entire
agreement between the parties pertaining to the subject matter of the
transactions contemplated by this Agreement. This Agreement supersedes all
written or oral, prior and contemporaneous agreements, representations,
warranties and understandings of the parties with respect thereto. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the parties.
8.4 Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason
of this Agreement on any persons other than the
parties to this Agreement and their respective successors and permitted assigns,
nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision hereof give any third party any right of subrogation or
action over or against any party to this Agreement.
8.5 Binding Effect; No Assignment. This Agreement shall be binding on
and shall inure to the benefit of the parties and their respective legal
representatives, successors and assigns. None of the rights or obligations under
this Agreement of any party to this Agreement may be conveyed, transferred,
assigned or delegated expressly, by operation of law or otherwise, without the
prior written consent of the other party to this Agreement.
8.6 Survival of Representations and Warranties. All representations,
warranties, covenants and agreements of the parties contained in this Agreement
or in any instrument or other writing provided for in this Agreement shall
survive the Closing and the term of this Agreement and shall not be deemed
merged into any documents delivered at the Closing.
8.7 Additional Documents After the Closing. Purchaser shall after the
Closing execute and deliver to Seller such other documents as may be reasonably
required by Seller to evidence Purchaser's compliance with any covenant and
condition herein set forth or to complete the transactions herein contemplated.
Without limiting the generality of the foregoing, Purchaser shall comply with
all reasonable requests of Seller in connection with the recordation of any
assignments or transfers under this Agreement.
8.8 Arbitration. Any controversy or dispute arising out of or relating
to this Agreement or its subject matter which the parties are unable to resolve
within ten (10) days after written notice by one party to the other party of the
existence of such controversy or dispute, may be submitted to binding
arbitration by either party. If so submitted to arbitration, the matter shall be
finally settled by binding arbitration conducted in accordance with the current
rules and procedures of the American Arbitration Association. Such arbitration
shall take place in Orem, Utah. The decision by the arbitrator on any matter
submitted to arbitration shall be binding and conclusive upon the parties, their
heirs, successors and assigns, as the case may be and they shall comply with
such decision in good faith. Each party hereby submits itself to the
jurisdiction of the state and federal courts within the State of Utah for the
entry of judgment with respect to the decision of the arbitrator hereunder.
Judgment upon the award may be entered in any state or federal court within the
State of Utah and/or any other court having jurisdiction. At the unilateral
option of either party, this Section 8.8 shall not apply to any claim or cause
of action arising from any breach of Section 7.2 hereof regarding confidentiality
or from any infringement of intellectual property.
8.9 Notices. All notices, requests, demands and other communications made
under, pursuant to or in accordance with this Agreement, except for normal
day-to-day business communications which may be made orally or in a writing sent
by fax, regular mail or hand delivered without need for a receipt, shall be in
writing and shall either be delivered personally or deposited in the United
States mails and sent by first-class mail, certified, return receipt requested,
postage prepaid and properly addressed as follows:
If to Purchaser, to:
Caldera Systems, Inc.
240 West Center Street
Orem, Utah 84057
Attention: Chief Executive Officer
If to Seller, to:
Caldera, Inc.
240 West Center Street
Orem, Utah 84057
Attention: Chief Executive Officer
or to such other address or addresses as a party thereto may indicate to the
other party in the manner provided for by this Section 8.9. Notices given by
mail shall be deemed effective and complete forty-eight (48) hours following
the time of posting and mailing thereof in accordance herewith, and notices
delivered personally shall be deemed effective and complete at the time of the
delivery thereof and the obtaining of a signed receipt therefor.
8.10 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement,
where the context requires, the singular shall include the plural and the
plural shall include the singular, and any gender or the neuter gender shall
include both other genders as the case may require.
8.1 Waiver. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party hereto making such waiver.
8.12 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Utah applied to contracts made and to be fully performed
entirely within such State between residents of such State. All disputes arising
out of this Agreement shall be subject to the exclusive jurisdiction and venue
of the Utah state courts of Utah County, Utah (or, if there is exclusive federal
jurisdiction, the United States District Court of Utah), and the parties consent
to the personal and exclusive jurisdiction and venue of these courts.
8.13 Time is of the Essence. Time is of the essence in this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of
the day and year first above written.
Purchaser: Caldera Systems, Inc.
By: /s/ RANSOM H. LOVE
------------------
Ransom H. Love
------------------
Seller: Caldera, Inc.
By: /s/ BRYAN SPARKS
------------------
Bryan Sparks
------------------
__________________________________________________________
EXHIBIT 10.9
AMENDMENT
TO
ASSET PURCHASE AGREEMENT
OF
CALDERA, SYSTEMS, INC. AND CALDERA, INC.
This Amendment to that certain Asset Purchase Agreement dated as of
September 1, 1998 (the "Agreement") by and between Caldera Systems, Inc., a Utah
corporation ("Purchaser") and Caldera, Inc., a Utah corporation ("Seller") is
dated and effective as of September 1, 1998.
1. The Agreement is hereby amended by striking and deleting the first
sentence of Section 1.3 as it presently exists and substituting for and in lieu
thereof the following:
1.1 Purchase Price and Allocation of Purchase Price. Subject to upward
adjustment as provided in this Section 1.3, the purchase price for the
Asset (the "Purchase Price") shall be Nineteen Million Nine Hundred Twenty
Eight Thousand Eight Hundred Forty Eight and no/100 Dollars $19,928,848.00
and the Purchase Price shall be allocated to the Assets as set forth on
Exhibit "H" attached hereto.
2. The Agreement is hereby amended by adding a new subsection (c) in
Section 1.4 as follows:
and (c) by canceling $4,928,848.00 of indebtedness owed by seller to the
Canopy Group, Inc. and which indebtedness has then been assigned by the
Canopy Group, Inc. to the purchaser.
3. The Agreement is hereby amended by striking and deleting the Section
1.6 as it presently exists and substituting for and in lieu thereof the
following:
1.6 Documentation of Sale of Inventory and Tangible Personal Property. At
the Closing Seller shall execute and deliver to Purchaser the Bill of Sale
attached hereto as Exhibit "A" (the "Bill of Sale") to evidence and effect
the transfer of the inventory and other tangible personal property
identified in Exhibit "A".
4. The Agreement is hereby amended by striking and deleting subsection
(i) entitled "Accounts Receivable" under Section B, of the Recitals.
5. Except as herein amended, the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to the Asset
Purchase Agreement as of the day above first written.
CALDERA SYSTEMS, INC.
By: /s/ RANSOM H. LOVE
----------------------------
Title: President/CEO
-------------------------
CALDERA, INC.
By: /s/ Bryan Sparks
----------------------------
Title: CEO
-------------------------
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 11:06 AM EDT |
If SCOX (The SCO Group's stock symbol, changed from CALD in 2003) were to admit
being Caldera they would be liable for all the things they accuse IBM and others
of doing with Linux and against Santa Cruz Operation.
Farsical.
(rjamestaylor, btw, not logged in)[ Reply to This | # ]
|
- Why CALD, er, SCOX, cannot be Caldera - Authored by: minkwe on Tuesday, April 06 2004 @ 11:13 AM EDT
- Why CALD, er, SCOX, cannot be Caldera - Authored by: Anonymous on Tuesday, April 06 2004 @ 12:00 PM EDT
- Parent posted by me ;) - Authored by: kuwan on Tuesday, April 06 2004 @ 12:01 PM EDT
- Why CALD, er, SCOX, cannot be Caldera - Authored by: Anonymous on Tuesday, April 06 2004 @ 01:10 PM EDT
- Why CALD, er, SCOX, cannot be Caldera - Authored by: Anonymous on Tuesday, April 06 2004 @ 01:42 PM EDT
- Why CALD, er, SCOX, cannot be Caldera - Authored by: s21mag on Tuesday, April 06 2004 @ 11:29 PM EDT
- Why CALD, er, SCOX, cannot be Caldera - Authored by: Anonymous on Tuesday, April 06 2004 @ 01:23 PM EDT
- Identity - Authored by: Ed L. on Tuesday, April 06 2004 @ 11:53 AM EDT
- Identity - Authored by: Anonymous on Tuesday, April 06 2004 @ 01:13 PM EDT
- Identity - Authored by: frk3 on Tuesday, April 06 2004 @ 05:32 PM EDT
- Would that be the Exhibits found at - Authored by: Anonymous on Tuesday, April 06 2004 @ 04:22 PM EDT
- Why CALD, er, SCOX, cannot be Caldera - Authored by: vadim on Wednesday, April 07 2004 @ 08:27 AM EDT
| |
| Authored by: cybervegan on Tuesday, April 06 2004 @ 11:10 AM EDT |
.
---
I wish I never had taken this dare
I wasn't quite prepared
doll me up in my bad luck
I'll meet you there -- verse 2, "Doll" by Foo Fighters[ Reply to This | # ]
|
- Links/URL's here, please - Authored by: codswallop on Tuesday, April 06 2004 @ 11:42 AM EDT
- MIght be interesting - Authored by: bsm2003 on Tuesday, April 06 2004 @ 12:16 PM EDT
- Links/URL's here, please - Authored by: Anonymous on Tuesday, April 06 2004 @ 12:32 PM EDT
- OT - Aussie govt & Linux - Authored by: kberrien on Tuesday, April 06 2004 @ 12:46 PM EDT
- Links/URL's here, please - Authored by: Anonymous on Tuesday, April 06 2004 @ 02:01 PM EDT
- CALDERA AND SCO REVEAL FIRST FRUITS OF LINUX AND UNIX MARRIAGE - Authored by: ravenII on Tuesday, April 06 2004 @ 04:04 PM EDT
- Links/URL's here, please - Authored by: Anonymous on Tuesday, April 06 2004 @ 04:31 PM EDT
- Redhat MOTION TO DISMISS DENIED - Authored by: Anonymous on Tuesday, April 06 2004 @ 09:17 PM EDT
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| Authored by: bonewah on Tuesday, April 06 2004 @ 11:10 AM EDT |
there is a similar doc at the sec's website, but it is much more extensive.
http://www.sec.gov/Archives/edgar/data/851560/000101287001500880/dex1.txt
Hope this helps!
[ Reply to This | # ]
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| Authored by: leguinn on Tuesday, April 06 2004 @ 11:19 AM EDT |
| Laura Didio and the Yankee Group are at it again...
Linux costlier than MS Windows
Some half-assed (didiotic?) commentary about how linux is not ready YET to
take on Windows. Actually, it is plea NOT to migrate to Linux... before dear
Laura changes profession [ Reply to This | # ]
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- Accurate. Reliable. Trusted--yeah right! - Authored by: Anonymous on Tuesday, April 06 2004 @ 11:35 AM EDT
- Oh Laura!, there you go again ! - Authored by: bsm2003 on Tuesday, April 06 2004 @ 12:08 PM EDT
- Oh Laura!, there you go again ! - Authored by: Anonymous on Tuesday, April 06 2004 @ 12:34 PM EDT
- Oh Laura!, there you go again ! - Authored by: Anonymous on Tuesday, April 06 2004 @ 01:24 PM EDT
- Oh Laura!, there you go again ! - Authored by: nilesh on Tuesday, April 06 2004 @ 01:45 PM EDT
- Well it's a survey - Authored by: Anonymous on Tuesday, April 06 2004 @ 02:44 PM EDT
- Oh Laura!, there you go again ! - Authored by: rittenhr on Tuesday, April 06 2004 @ 02:49 PM EDT
- One trade 'zine at least interviewed a Red Hat exec - Authored by: Anonymous on Tuesday, April 06 2004 @ 03:03 PM EDT
- OT: Your .sig - Authored by: Anonymous on Tuesday, April 06 2004 @ 10:01 PM EDT
- Oh Laura!, there you go again ! (she has a point) - Authored by: Anonymous on Tuesday, April 06 2004 @ 03:11 PM EDT
- Oh Laura!, there you go again ! (she has a point) - Authored by: Anonymous on Tuesday, April 06 2004 @ 03:31 PM EDT
- Oh Laura!, there you go again ! (she has a point-Not!!t) - Authored by: Anonymous on Tuesday, April 06 2004 @ 05:26 PM EDT
- Oh Laura!, there you go again ! (she has a point) - Authored by: Anonymous on Tuesday, April 06 2004 @ 05:48 PM EDT
- Oh Laura!, there you go again ! (she has a point) - Authored by: Anonymous on Tuesday, April 06 2004 @ 08:08 PM EDT
- Oh Laura!, there you go again ! (she has a point) - Authored by: wayne1932 on Tuesday, April 06 2004 @ 08:35 PM EDT
- Oh Laura!, there you go again ! (she has a point-not) - Authored by: JustFree on Tuesday, April 06 2004 @ 10:39 PM EDT
- a few points - Authored by: surak on Wednesday, April 07 2004 @ 07:19 AM EDT
- Oh Laura!, there you go again ! - Authored by: utahbob55 on Tuesday, April 06 2004 @ 04:12 PM EDT
- Oh Laura!, there you go again ! - Authored by: minkwe on Tuesday, April 06 2004 @ 05:08 PM EDT
- Oh Laura!, there you go again ! - Authored by: meat straw on Tuesday, April 06 2004 @ 08:21 PM EDT
- Oh Laura!, there you go again ! - Authored by: Anonymous on Tuesday, April 06 2004 @ 09:50 PM EDT
- Oh Laura!, there you go again ! - Authored by: Anonymous on Tuesday, April 06 2004 @ 10:50 PM EDT
- Did you get a peek at her email address? :-) - Authored by: Anonymous on Wednesday, April 07 2004 @ 12:18 AM EDT
- Oh Laura!, there you go again ! - Authored by: Anonymous on Wednesday, April 07 2004 @ 12:56 PM EDT
| |
| Authored by: Anonymous on Tuesday, April 06 2004 @ 11:20 AM EDT |
You mean, SCOX is making statements that while not immediately demonstrable as
false, kind of stretch the truth to the point of falsehood? Statements, that
when you actually dig into them, don't have the credibility of truth!? In fact,
statements that when you really dig into them turn out to be completely bogus!?!
I'm shocked. Shocked, I say! Say it ain't so Darl, say it ain't soooooo. . .[ Reply to This | # ]
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| Authored by: red floyd on Tuesday, April 06 2004 @ 11:36 AM EDT |
What's with the stock? There's been relatively high volume since about 1 April,
coinciding with the rise in price. Is another pump going on?
---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 11:38 AM EDT |
at all in either of the two documents given so far on this
page... [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 11:41 AM EDT |
When was the Microsoft settlement or award in the DR-DOS suit made, and what
"Caldera-related" entity received it? Was all this company shuffling
a mechanism for funneling off the proceeds to another entity? Maybe a private
company, where the cash could be raided without scrutiny? Boy, I should be
ashamed for being so suspicious, but I'm not!
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 11:41 AM EDT |
vi) Trademarks - all right, title and interest of Seller
in and to the trademarks, service marks, trade names,
logos, and product names and the goodwill of the
business associated therewith (the "Trademarks") as
identified in and that will be subject of the
Trademarks Assignment Agreement set forth in Exhibit
"C" attached hereto,
(vii) Copyrights - all right, title and interest of Seller
in and to the copyrights, copyright applications, and
copyright registrations (the "Copyrights") identified
in and what will be subject of the Copyright
Assignment Agreement set forth in exhibit "D" attached
hereto,
(viii) Patents - all right, title and interest of Seller in
and to the patents and patent applications (the
"Patents") identified in and that will be subject of
the Patent Assignment Agreement set forth in Exhibit
"E" attached hereto,
(ix) Intellectual Property - any other intellectual property
used in or relating to the Business (other than the
Trademarks, Copyrights and Patents) of Seller
including, without limitation, all trade secrets,
proprietary technology, and confidential information,
(the "Intellectual Property") identified in and that
will be subject of the Intellectual Property Assignment
Agreement set forth in Exhibit "F" attached hereto, and
So someplace in attachments C, D, E or F should be an
itemized list, recording the transfer of rights that SCOX is
now claiming, right?
If the IP rights aren't listed then at best they reside with
Caldera Inc (assuming that Novell ever did transfer them in
the first place).
[ Reply to This | # ]
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| Authored by: brian on Tuesday, April 06 2004 @ 11:47 AM EDT |
"(vii) Copyrights - all right, title and interest of Seller in and to the
copyrights, copyright applications, and copyright registrations (the
"Copyrights") identified in and what will be subject of the Copyright
Assignment Agreement set forth in exhibit "D" attached hereto,
(viii) Patents - all right, title and interest of Seller in and to the patents
and patent applications (the "Patents") identified in and that will be
subject of the Patent Assignment Agreement set forth in Exhibit "E"
attached hereto,
(ix) Intellectual Property - any other intellectual property used in or relating
to the Business (other than the Trademarks, Copyrights and Patents) of Seller
including, without limitation, all trade secrets,
proprietary technology, and confidential information, (the "Intellectual
Property") identified in and that will be subject of the Intellectual
Property Assignment Agreement set forth in Exhibit "F" attached
hereto"
Seems to me this whole ball of wax comes down to these 3 clauses. We really need
the Exhibits D,E, and F.
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
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| Authored by: uw_dwarf on Tuesday, April 06 2004 @ 11:49 AM EDT |
Well, well, well. Section 1.9 states that the copyrights being transferred are
to be detailed in Exhibit "D". Yet the current incarnation of SCO is
saying that Novell's intention and willingness to assign copyrights, without
explicit assignment, is sufficient for them to claim them from Novell.
Fascinating. I can't wait to see how SCO positions this in their case against
Novell.
[ Reply to This | # ]
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| Authored by: ssavitzky on Tuesday, April 06 2004 @ 12:05 PM EDT |
I believe that it was the "other" Caldera ("seller" in the
APA) that retained the lawsuit as part of the non-Linux business. It's possible
that the original idea was to protect the Linux side's assets in case they lost
the suit.
---
The SCO method: open mouth, insert foot, pull trigger.[ Reply to This | # ]
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| Authored by: RockHopper on Tuesday, April 06 2004 @ 12:08 PM EDT |
Sorry if this has been discussed before.
But why is all the debate about what Novell sold to oldSCO?
How come there seems to be no mention of what oldSco sold to Caldera (newSCO)?
This is who has actually brought the suits.
[ Reply to This | # ]
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| Authored by: DFJA on Tuesday, April 06 2004 @ 12:11 PM EDT |
Well I've been following this fiaSCO for the last year and I'm still confused by
exactly who are Santa Cruz Operation, the SCO Group, Caldera Systems, Caldera
International, Caldera Inc, and so forth.
If I'm confused, then I am sure a lot of other people are, including judges,
jury, lawyers and so forth. I'm sure with a bit more effort I could understand
it all in this level of detail, but as has been said many times before, it is
blatantly obvious that:
This whole thing is designed to create confusion and deceit in the minds of Joe
Public. Maybe they thought they could create similar confusion in the minds of
lawyers too, but lawyers I should expect at least take it upon themselves to dig
to the bottom of it all. Regardless of this, these are the hallmarks of a
publicity campaign, of FUD, not of a watertight legal case.
I do however have one question:
Is it possible for these slippery operators, by creating various companies,
transferring assets and so forth between them to slip out of their
responsibilities? For example the Patent Infringement claims of IBM could be
deemed to be true, but were infringed by one of the legal entities that actually
isn't the current SCOX?
In the UK it is the individual directors of a company that ultimately are liable
for these claims in this type of situation, so the process is well defined and a
director cannot simply declare his company bankrupt, then create a new company
to avoid liabilities. However if the purpose is to spread FUD, the whole thing
can take so long to go through the legal process that the FUD has already been
spread far and wide before there is any comeback on the perpetrators.
So Darl et. al. may ultimately be found guilty of all sorts of things, but if
they are old men by then they probably don't care.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 12:20 PM EDT |
I fell over laughing as I tried to figure out what anyone at SCOG was doing 25
years ago.... Probably had nothing to do with Unix, where was Darl back when?
Also Their top 5 reasons for using Unix over Linux... What a hoot number 5 is...
Unix is "Legally unencumbered" Another SCOG lie. Hey Darl aren't you
battling those legal issues right now. Oh wait, you tried qualify that by by
showing your well thought out instrument "the Open Letter" Which
proves to your 'would be' client that Unix is encumbered Legally. Try to
persuade the judge to buy your software. Happy 25th you idiot!
SCO UNIX® is Legally Unencumbered
SCO is the owner of the UNIX® Operating System Intellectual Property that dates
all the way back to 1969, when the UNIX® System was created at Bell
Laboratories. Through a series of mergers and acquisitions, SCO has acquired
ownership of the copyrights and core technology associated with the UNIX®
System. The SCO source division will continue to offer traditional UNIX® System
licenses to preserve, protect, and enhance shareholder value.
As early as May 2003, SCO warned Linux® users that enterprise use of the Linux®
operating system was in violation of its intellectual property rights in UNIX®
technology. Certain copyrighted application binary interfaces ("ABI
Code") have been copied verbatim from SCO's copyrighted UNIX® code base and
contributed to Linux® for distribution under the General Public License
("GPL") without proper authorization and without copyright
attribution. These facts support SCO's position that the use of the Linux®
operating system in a commercial setting violates our rights under the United
States Copyright Act, including the Digital Millennium Copyright Act.
While some application programming interfaces ("API Code") have been
made available over the years through POSIX and other open standards, the UNIX®
ABI Code has only been made available under copyright restrictions. AT&T
made these binary interfaces available in order to support application
development to UNIX® operating systems and to assist UNIX® licensees in the
development process. The UNIX® ABIs were never authorized for unrestricted use
or distribution under the GPL in Linux®. As the copyright holder, SCO has never
granted such permission. Nevertheless, many of the ABIs contained in Linux®, and
improperly distributed under the GPL, are direct copies of our UNIX® copyrighted
software code.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 12:30 PM EDT |
Things like this make me keep recalling the Supreme
Court decision in the Nike case that basically implied
that it is OK for businesses to lie to the public.
Businesses have really taken advantage of it.
I'm sure someone will correct me on the details, but
that is what I got out of it.
[ Reply to This | # ]
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| Authored by: JR on Tuesday, April 06 2004 @ 12:37 PM EDT |
Hmm, seems to me that the SCO Group has an identity problem...
This is the SCO company name trademark (looks like is still owned by
Tarantella):
http://tess2.uspto.gov/bin/showfield?f=doc&state=carbp0.3.23
This is the SCO product trademark:
This seems to be the trademark that Caldera/TSG bought:
http://tess2.uspto.gov/bin/showfield?f=doc&state=carbp0.3.18
Best,
JR[ Reply to This | # ]
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| Authored by: Vaino Vaher on Tuesday, April 06 2004 @ 12:48 PM EDT |
I did some digging on the subject recently. This is what I came up with:
1) The original agreement between Caldera (a.k.a. TSG) and oldSCO (a.k.a.
Tarantella) was signed on or about Aug 1, 2000. It outlines what is transfered
as part of the agreement (basically two divisions of SCO and also the related
server software products). It specifically excludes IP from the deal.
2) There are at least three ammendments to the agreement; the third one, signed
in the spring of 2001, adds some vaguely specified copyrights. They are thrown
in basically free of charge, and the motivation is that it will make operations
smoother.
You can find all the relevant documents in the SEC filings for 'Tarantella'.
(Warning: There is a lot to read!).
- Is the UNIX copyright transfered? Well, a FAQ document indicates that it is.
But it is not entirely clear from the filings what was actually transfered (or
if the transfer was ever completed). Reading Groklaw I realize that transfer of
copyright requires a specific and explicit document, and I have not found any
such.
- Did TSG pay 100 million for the IP (like they claim)? No, the compensation to
oldSCO (a.k.a Tarantella) was outlined in the agreement of August 2000 (which
explicitly excluded IP). and there doesn't seem to be any adjustments because of
the later inclusion of the IP; i.e. TSG got it as a bonus.
- Was the UNIX IP at the time considered as a valuable asset? Not at all. It is
only mentioned briefly and not in the context of being a core asset. This is, in
my humble opinion, supporting Novell's stance. The UNIX IP that may have been
transfered could easily have been the copyrighted materials that had been added
by oldSCO. In such case we would have a case of 'derivate work', the definition
of which would be interresting to take part of.
Disclaimer: The above is my best effort to interpret the Tarantella SEC filings.
I'm a computer scientist from a faraway country (Sweden), so my conclusions may
be completely wrong and irrelevant.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 01:07 PM EDT |
At first reading it sounds like it does. SCOX is pretty clearly claiming it
doesn't. I don't think Novell has made any statements on this.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 01:32 PM EDT |
Sorry for double-posting (see earlier thread) but corporate shell games are old
hat, here's one example:
<http://www.fas.org/irp/congress/1992_rpt/bcci/01exec.htm>
Brief quote:
".. Unlike any ordinary bank, BCCI was from its earliest days made up of
multiplying layers of entities, related to one another through an impenetrable
series of holding companies, affiliates, subsidiaries, banks-within-banks,
insider dealings and nominee relationships. By fracturing corporate structure,
record keeping, regulatory review, and audits, the complex BCCI family of
entities created by Abedi was able to evade ordinary legal restrictions on the
movement of capital and goods as a matter of daily practice and routine.."
Idontdowindows
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 02:11 PM EDT |
Well Darl was it.....
http://www.crn.com/sections/special/top25/top25_03.asp?ArticleID=45992
CRN November 17, 2003
"McBride claims he didn't want to resort to lawsuits or to pressuring Linux
customers to pay royalties. Rather, he says he first reached out to the leaders
of the Linux community to resolve the issue, but was largely ignored or
vilified.
He says he sent an e-mail to Linus Torvalds, but Torvalds never responded.
Torvalds denies that, but has been dismissive of SCO's claims."
or was it....
http://www.eweek.com/article2/0,1759,1560149,00.asp
eWEEK April 1, 2004
"McBride: I talked to Linus [Torvalds] in an e-mail exchange last summer,
and I told him I was willing to show him the code. But he said he didn't want to
see it because he didn't want to be tainted by it. So, there's this attitude of
we want to show it, but we don't see it."
or will it be something else tomorrow?
(found on Yahoo SCOX board)
[ Reply to This | # ]
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| Authored by: blacklight on Tuesday, April 06 2004 @ 02:15 PM EDT |
"One of the hardest parts of the SCO story is figuring out exactly who they
are, thanks to all the name changes."
That reminds me of the currently playing movie "Taking Lives", with
Angelina Jolie starring. [ Reply to This | # ]
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| Authored by: nealywilly on Tuesday, April 06 2004 @ 02:20 PM EDT |
How is it that The SCO Group can claim that the APA (as amended) between Novell
and Santa Cruz Operation IS a sufficient copyright assignment WITHOUT an
copyrights assignment agreement (actual, as opposed to a promise), when a
(questionably) arms-length APA between two affiliated (sister) companies under
the Canopy umbrella required a "Copyrights Assignment Agreement" to be
delivered at closing?
It is beyond incredulous, in light of the above, that TSG make its claims
against Novell on this basis (actually, that they reject Novell's defense on
this basis).
Also note that this agreement also includes the "All your base are
ours" concept with no exclusions, so it should have been obvious that
copyrights were included. Yet, they not only included them separately from
"Intellectual Property", but also required an assignment agreement.
Now, we all know they were not an actual party to the Novell-Santa Cruz
Operation APA, so they were not responsible for the sloppiness in that
transaction. However, they cannot convince anyone that they believe copyrights
can be transferred without an explicit assignment if they thought they needed
one internally (from a Canopy perspective).
Here's the relevant text:
RECITALS B.
(vii) Copyrights - all right, title and interest of Seller in and to the
copyrights, copyright applications, and copyright registrations (the
"Copyrights") identified in and what will be subject of the Copyright
Assignment Agreement set forth in exhibit "D" attached hereto,
C. Purchaser desires to purchase the Assets from Seller and Seller desires to
sell the Assets to Purchaser, all as provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
SECTION 1 -- TERMS OF PURCHASE
1.1 Purchase of Assets. In reliance on the representations and warranties
contained herein and in consideration of the purchase price as set forth in
section 1.3 hereof and subject to all other terms and conditions hereof, at the
Closing (as defined in section 2.1), and effective as of the Effective Date (as
defined in Section 2.1), Purchaser shall purchase and accept, and Seller shall
sell, assign, transfer, convey and deliver to Purchaser, all of Seller's rights,
titles and interests in and to all the Assets (defined in Recital Paragraph B,
above).
1.9 Documentation of Assignment of Copyrights. At the Closing Seller and
Purchaser shall execute and deliver to the other the Copyright Assignment
Agreement attached hereto as Exhibit "D" to evidence and effect the
assignment of the Copyrights.
SECTION 2 - THE CLOSING
2.2 Events at the Closing. The following events shall occur at the Closing, each
of which shall be a condition precedent to each of the others and all of which
shall be deemed to have occurred concurrently:
Seller's Deliverables
(e) Seller shall execute and deliver to Purchaser the
Copyrights Assignment Agreement (see Exhibit "D" attached hereto);
PURCHASER'S DELIVERABLES
(n) Purchaser shall execute and deliver to Seller a copy of the Copyrights
Assignment Agreement (see Exhibit "D" attached hereto);
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 02:24 PM EDT |
The agreement certainly shows that the parties involved knew how to properly and
legally sell/assign copyrights as part of a transaction when they intend to make
such a transfer in the context of selling a "business" -- which shows,
by contrast, that the Novell-SCO transfer of the "UNIX" business which
EXCLUDED the transfer of copyrights was also a knowing and intentional exclusion
by the parties.
Another fact that nails SCO's coffin ever tighter.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 02:30 PM EDT |
Great work, PJ. This is very useful information for corralling in TSG. Lets
watch for perjury and fraud during the trial. : )
TSG has been misrepresenting their own identity and culpability. This is
typical among shell corporations. They practice identity theft as part of
their business model (i.e., stretch the laws to their breaking points). TSG
possibly intends to misrepresent themselves in all venues for all time.
The fact is that TSG is legally Caldera Systems, Inc., spun off in 1998.
The fact is that TSG has been a world class GNU/Linux developer and
distributor since spinning off from the similar sounding Caldera, Inc., in
August 1998. Note that similar sounding Caldera, Inc., also was a world
class GNU/Linux developer and distributor since 1994; it split off all of
its GNU/Linux business and assets to Caldera Systems. TSG has been one
of the most visible companies in the GNU/Linux market since its start.
The fact is that TSG has employed a large staff of GNU/Linux developers
and managers since 1994.
The fact is that TSG eschewed AT&T UNIX in their business until their
contract with Santa Cruz Operation in late 2000, when they purchased
some or all of the SCO assets related to AT&T UNIX. Note the many years
of GNU/Linux business between 1994 and 2000. Note that the real SCO
renamed themselves Tarantella and continues to exist.
The fact is that TSG blended GNU/Linux technology with their recently
purchased AT&T and SCO technology after their 2000 contract. Note TSG
includes GNU/Linux source code it their proprietary flavors of UNIX
distributions.
So, TSG cannot claim they did not know because it was their only business
and they certainly knew their own business for all those years.
So, TSG cannot claim they did not contribute because the GNU/Linux
projects have reams of proven contributions stemming from these shell
corporations.
So, TSG cannot claim they are innocent or victims because their ploy to
hide these truths has been discovered and proven.
Any judge and jury could understand the facts at this non-technical, non-
expert level. These facts do not take that much effort to understand.
Next, if you could explain the identity and history of UNIX-type OSs at the
level of the masses...[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 02:31 PM EDT |
According to Bob Mims, IBM is now asking for full dismissal with prejudice, so
that SCOG cannot refile the claims later.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 02:36 PM EDT |
Where is the announcement of the 25th anniversary?
All I could find was http://www.thescogroup.com/2004forum/sponsors/
Where they said "This year's SCO Forum theme, The Power of UNIX, is in
keeping with the celebration of SCO's 25th Anniversary."
Well, I guess it is the 25th anniversary of SCO unix, and their little logo
seems to imply that this is the 25th anniversary of SCOG, but is there anything
more blatent?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 02:48 PM EDT |
Added to the SCOX identity crisis is the fact that (as of right now) if you
point your browser to http://caldera.com or http://calderasystems.com it doesn't
404, display a splash page explaining the difference between Caldera, er SCO,
and Tarantella, or redirect to a different URL.
It simply displays the SCO website.
And, after going public, Caldera called themselves "Caldera
International" for a couple of years.
--
Kyle
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 03:57 PM EDT |
See
here. [ Reply to This | # ]
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- Whoops! - Authored by: Anonymous on Tuesday, April 06 2004 @ 03:59 PM EDT
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| Authored by: geoff lane on Tuesday, April 06 2004 @ 04:06 PM EDT |
| If you look at the yahoo finance page for SCOX you will see that
the graph is labelled CALDERA INTL.
But if you look at the 5 year graph (or any of the other intervals) it's labelled SCO GROUP
INC.
The 5 year graph is quite interesting - SCOX hasn't had a happy
history. The original investment of approx. $120M has all but disappeared
and only shown any life at all over the past 12 months. SCOX has never been
viewed by investors as a company with any kind of business future.
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 04:11 PM EDT |
Just looking through SCO's web site. In the part on SCO vs Novell
http://www.sco.com/novell/
the newest entry is March 5 - SCO's opposition to Novell's motion. In fact, to a
visitor it looks like it's ALL SCO. Why am I not surprised.
[ Reply to This | # ]
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| Authored by: bwcbwc on Tuesday, April 06 2004 @ 04:12 PM EDT |
I'm sorry but I just can't resist...
> They seem to be claiming parentage
> from only one parent, so to speak.
...with apologies to all of the real children of single parents out there.
So they finally admit that they really ARE illegitimate bastards. ;-)[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Tuesday, April 06 2004 @ 04:29 PM EDT |
I'm not sure it will clarify anything, under no circumstances could they have
sold something they didn't own. They would only be helpful if they made clear
that those were not among the assets being sold
Even if the Exhibits say they sold all IP related to Unix, that would not mean
they actually owned it. What is more interesting is the Novell and SCO
agreements. It is entirely possible Caldera thought they were buying something
SCO could not sell them because they didn't own it.[ Reply to This | # ]
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| Authored by: DFJA on Tuesday, April 06 2004 @ 06:18 PM EDT |
PJ,
I notice there is an IBM timeline, a Red Hat timeline
and a Novell Timeline referred to from your left hand
panel. I wonder if we now need an "SCO corporate identity
timeline" too - so that we can make easy sense of who's
who, from a legal point of view. Then readers can easily
understand where Darl et. al. are being deceitful about
their identity.
Just a thought.
DFJA
43 - for those who require a little more than the answer
to life, the universe and everything. [ Reply to This | # ]
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| Authored by: radix2 on Tuesday, April 06 2004 @ 06:22 PM EDT |
Their history chart corrected to remove misdirections. This is mostly from their
own web site (with a few other events inserted). In most cases, all I have done
is replace the word SCO with "The Santa Cruz Operation" where
appropriate. Remember "SCO" as a company has never existed, although
both "The Santa Cruz Operation" and "The SCO Group" have
used this nick name at various times in their respective histories to align
themsleves with their major brand asset.
1979
The Santa Cruz Operation founded by Doug and Larry Michels as a UNIX® system
porting and consulting company.
1983
The Santa Cruz Operation delivers the first packaged UNIX System (called SCO®
XENIX® System V) for Intel® 8086 and 8088 processor-based PCs. It provides small
businesses with the first affordable business-critical computing system.
1984
The Santa Cruz Operation creates a two-tier channel model for distributing
general-purpose operating systems worldwide. The Santa Cruz Operation works with
distributors, resellers, application developers, and computer manufacturers to
build what is now a $4 billion market for Intel processor based solutions that
run SCO server software.
1985
The Santa Cruz Operation delivers SCO XENIX 286 for Intel 80286 processor-based
systems. SCO XENIX 286 delivers on The Santa Cruz Operation's commitment to
"upward compatibility," the ability of an operating system to run
applications developed on earlier versions (in this case, SCO XENIX System V).
1986
The Santa Cruz Operation acquires division of Logica Ltd in UK, creating first
The Santa Cruz Operation European headquarters.
1986
The Santa Cruz Operation establishes SCO XENIX 286 as the first OEM
"reference sell" model for unbundled UNIX Systems - computer
manufacturers recommend SCO XENIX 286 to customers who want to run a UNIX System
on their computers.
1987
The Santa Cruz Operation hosts the "386 Summit" in San Francisco, the
first gathering of computing manufacturers and software developers to preview
the new era of 32-bit business computing on the Intel hardware platform.
1987
The Santa Cruz Operation hosts the first SCO Forum conference (called that year
"The SCO XENIX 386 Developer Conference"). This unique educational
conference for the international UNIX systems community is held each summer on
the redwood-forested campus of the University of California at Santa Cruz,
overlooking Monterey Bay.
1987
The Santa Cruz Operation ships SCO XENIX 386, the first 32-bit operating system
(and first UNIX System) for Intel 386 processor-based systems.
1989
The Santa Cruz Operation ships SCO® UNIX® System V/386, the first volume
commercial product licensed by AT&T to use the UNIX System trademark.
1989
The Santa Cruz Operation introduces SCO® Open Desktop®, the first 32-bit
graphical user interface for UNIX Systems running on Intel processor-based
computers.
1990
The Santa Cruz Operation acquires HCR, establishing SCO Canada.
1990
The Santa Cruz Operation delivers SCO® MPX™, the first packaged software to
support the new Intel multiprocessor-based computers.
1992
The Santa Cruz Operation launches SCO OpenServer™ family of operating system
products.
1993
The Santa Cruz Operation goes public on the Nasdaq Stock Exchange with ticker
symbol, SCOC.
1993
The Santa Cruz Operation acquires IXI, establishing The Santa Cruz Operation's
Cambridge development center.
1994
The Santa Cruz Operation acquires Visionware (for client emulation technology -
Tarantella) and establishes Leeds office in UK.
1994
The Santa Cruz Operation co-hosts the First International Conference on the
World-Wide Web in Geneva, Switzerland.
1994
Caldera Inc formed by Ray Noorda & Ransom Love.
1995
The Santa Cruz Operation delivers the first commercially distributed web
browser, IXI Mosaic, licensed from NCSA.
1995
The Santa Cruz Operation acquires UNIX System source technology business from
Novell Corporation (which had acquired it from AT&T's UNIX System
Laboratories). The Santa Cruz Operation also acquires the UnixWare® 2 operating
system from Novell.
1996
The Santa Cruz Operation launches first initiative of computer vendors to
establish a standard UNIX system for volume Intel processor-based servers in the
enterprise - the Big E initiative.
1997
The Santa Cruz Operation delivers the first clustering solution for Intel
processor-based servers.
1998
The Santa Cruz Operation delivers UnixWare 7 operating system, the most advanced
server operating system for Intel processors.
1998
The Santa Cruz Operation launches the first initiative by computer vendors to
establish a standard UNIX System for Intel processor-based servers in the data
center - the Data Center Initiative.
1998
Project Monterey: The Santa Cruz Operation and IBM, with the support of Intel
agree to develop a high-volume enterprise UNIX system for Intel IA-32 and IA-64
systems. The result will be a single product line that will run on IA-32, IA-64
and IBM microprocessor systems that range from entry-level servers to large
enterprise environments.
1998
The Santa Cruz Operation delivers UnixWare for Intel's "Merced" (BL2)
processor, the first stable UNIX System development platform for Intel's IA-64
processor (now called "Itanium™").
1999
The Santa Cruz Operation delivers UnixWare 7 Release 7.1, featuring new Webtop
(based on Tarantella technology), plus new Business and Data Center editions.
1999
The Santa Cruz Operation delivers new Appliance Server Technology; Compaq
Computer Corporation and Micron Electronics are first strategic OEM customers to
use the new technology.
1999
The Santa Cruz Operation delivers UnixWare® 7 NonStop® Clusters software for
Intel processors. This was developed in partnership with Compaq (now HP)
1999
The Santa Cruz Operation launches numerous Open Source initiatives: 1) Offers
free Open Source applications and tools to The Santa Cruz Operation's customers;
2) Extends Professional Services to include audits and deployment consultation
for customers interested in installing Linux and Open Source technologies; 3)
Invests in LinuxMall.com, the leading portal for Linux-related products and
services; 4) Enters strategic agreement with TurboLinux to develop services for
TurboLinux's TurboCluster Server and provide Linux Professional Services for
TurboLinux customers.
?
Caldera Systems and The Santa Cruz Operation negotiating a merger of Operating
Systems divisions to form a new company.
?
Caldera Systems merge Services operations with The Santa Cruz Operation's.
2000
(August) Caldera Systems announces purchase of UnixWare from The Santa Cruz
Operation.
2000
Caldera Systems completes an IPO (Nasdaq: CALD).
2000
Caldera Systems finalises deal with The Santa Cruz Operation to purchase
OpenServer and Unixware. Caldera Systems will pay The Santa Cruz Operation $23
million when the deal closes and $8 million more over four quarters. In
addition, The Santa Cruz Operation will get a fraction of revenue from
OpenServer sales and will get 16 million shares in Caldera Systems. (source.
http://news.com.com/2100-1001-252383.html)
2001
(Feb) Caldera Systems acquires Acrylis Technology, a Chelmsford, Mass company
with a product called WhatIfLinux (formally Seagate Appcontrol) to provide
remote software updating for Linux.
2001
On May 7, Caldera Systems completes the acquisition of The Santa Cruz
Operation's Server Software and Professional Services Divisions, becoming
Caldera International (Caldera) and providing the world's largest Linux/UNIX
channel. The Santa Cruz Operation becomes Tarantella Inc selling Thin-Client
solutions.
2001
Caldera International establishes a Japanese subsidiary -- Caldera K.K. -- with
support from Fujitsu and Hitachi.
2002
Caldera International names a new CEO, Darl McBride.
2002
Caldera International changes its name to The SCO Group (Nasdaq: SCOX),
returning to the SCO brand.
[ Reply to This | # ]
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- Caldera, Inc./ Caldera Systems, Inc. 1998 Asset Purchase and Sale Agreement - Authored by: Anonymous on Tuesday, April 06 2004 @ 08:33 PM EDT
- Caldera, Inc./ Caldera Systems, Inc. 1998 Asset Purchase and Sale Agreement - Authored by: Anonymous on Tuesday, April 06 2004 @ 09:54 PM EDT
- What about MS & Xenix? - Authored by: snorpus on Tuesday, April 06 2004 @ 10:09 PM EDT
- Caldera, Inc./ Caldera Systems, Inc. 1998 Asset Purchase and Sale Agreement - Authored by: odysseus on Tuesday, April 06 2004 @ 10:39 PM EDT
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 07:27 PM EDT |
http://story.news.yahoo.com/news?tmpl=story&cid=581&e=6&u=/nm/200404
05/tc_nm/tech_linux_dc[ Reply to This | # ]
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| Authored by: Mike B on Tuesday, April 06 2004 @ 08:39 PM EDT |
SCaldera ISNT a party to the DR-DOS case for this reason:
The timing of the 2000 re-incporporation was set to coincide with the
Microsoft/DR-DOS case settlement award. The ENTIRE settlement amount was
transferred to Canopy. All of Caldera that wasn't that money wasn't transferred
to the new company that became SCaldera.
Indeed, I think they even did this move BEFORE the settlement, and the case was
concluded by the shell of the OLD corporation, which was dissolved back into
Canopy to avoid it being investment fraud.
The same thing would likely happen in this case, if they actually had a shot to
win.
---
Disclaimer: Former IBM employee (I worked as a Q/A tester in their server
division, qualifying prerelease products with IBM supported Network Operating
Systems,[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 10:15 PM EDT |
Here is an interesting SEC filing of Caldera info and agreements with other
companies. It is extensive.
http://www.sec.gov/Archives/edgar/data/1102542/0001035704-00-000008-index.html
The GNU General Public License is quoted, along with the following in their
investement risk section:
"Certain components of OpenLinux have been developed and made available for
licensing under the GNU General Public License and similar licenses, which
generally allow any person or organization to copy, modify and distribute the
software. The only restriction is that any resulting or derivative work must be
made available to the public under the same terms. Therefore, although we retain
the copyrights to the code that we develop ourselves, due to the open source
nature of our software products and the licenses under which we develop and
distribute them, our collection of trademarks constitutes our most important
intellectual property."
[ Reply to This | # ]
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| Authored by: wvhillbilly on Tuesday, April 06 2004 @ 10:16 PM EDT |
This APA has specific language conveying specified properties from the seller to
the purchaser and spells out the properties to be transferred in exact detail.
Additionally the seller is to execute and give to the purchaser a copy of the
assignment agreement for each of the properties transferred, and the purchaser
is to do likewise to the seller. So each should have a copy of the assignment
agreement conveying each of the properties from the seller to the purchaser. In
the Novell-Santa Cruz APA copyrights and patents are specifically excluded, and
amendmendment B only makes an exception to the exclusion for such copyrights as
Santa Cruz needs to run their business. If any copyrights were actually
conveyed there should have been signed agreements in the hands of both Novell
and Santa Cruz stating explicitly what was conveyed. Since neither side has
been able to produce any such assignment agreements for any of the copyrights,
it seems to me the assumption has to be no copyrights were transferred. And if
Santa Cruz didn't have them, than neither does SCOG.
This APA when compared to the Novell-Santa Cruz APA looks to me like just one
more nail in the coffin for all of SCOG's UNIX copyright claims.
---
What goes around comes around, and it grows as it goes.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 06 2004 @ 11:04 PM EDT |
So let me see if I understand how Canopy pulled this off!
Caldera Inc. sues M$.
Caldera Systems Inc. purchases Caldera Inc.'s assets, but we don't know what
they exactly transferred because of the missing exihibits.
Caldera Holding Inc is created by Canopy (God only knows when).
Caldera Holding Inc, Caldera Systems Inc and Santa Cruz Operations Inc (SCO)
merge, kinda sorta. But we are not sure what assets were transferred to whom
because of missing exhibits.
SCO renames itself Tarantella.
Caldera Systems Inc. renames itself The SCO Group.
So what happened to the following two companies Cadlera Inc. and Caldera Holding
Inc. What assets were transferred to these two companies, Ahh, we don't know
because because of the missing exhibits!
So without seeing the exhibits as to what was transferred and to whom we
technically do not know if The SCO Group is the successor of interest to Caldera
Inc. The only thing we know is that Canopy has a veiled interest in the movement
of assets between these companies. Oh, what a tangled web ...
_[=================]_
---~~~~~~~~~~~~~~~---
from under the bridge
I realize I'm only the hired help here but I don't do Windows.
vegas t[ Reply to This | # ]
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| Authored by: hal9000 on Wednesday, April 07 2004 @ 02:56 AM EDT |
The 1st discovery request by IBM in the SCO v IBM case
specifically requested this Asset Purchase Agreement.
This purchase was worth about $35M USD including stock
options and such. SCOG could not fulfill this request
because they could not find them.
This document would only be a few years old and is
worth $35M USD. Surely, this would be on file at
SCOG and be immediately to hand.
I think that this document states that
no copyrights were purchased or no copyrights
were listed in the transfer documents.
SCOG lawyers were probably not given these documents
because they would be too damaging to their case
so therefor they could deny all knowledge of their
contents.
IBM may make a specific issue of this if they
are not provided with-in the next 2 weeks.
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| Authored by: lordmhoram on Wednesday, April 07 2004 @ 08:13 AM EDT |
para 3 line 4: "Tarentella" - should read "Tarantella"
(Sorry if there's a generic place to report these: if there is, I couldn't find
it.)
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| Authored by: Anonymous on Wednesday, April 07 2004 @ 10:18 PM EDT |
RECITALS B (vii) says that Exhibit "D" contains the list of copyrights
to be sold. If it contains the actual copyright registration numbers then it
would show that Caldera knew how to transfer copyrights and Novell could point
to this contract as an example of a valid transfer.[ Reply to This | # ]
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