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Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text
Wednesday, October 20 2004 @ 11:49 AM EDT

Thanks to Frank Sorenson, who thought to ask the court if it was available, we now have the Bill of Sale from Novell to Santa Cruz Operation, dated December 6, 1995. SCO offered this document because it uses the magic phrase "does hereby transfer, convey, sell, assign and deliver to Buyer," to try, I guess, to shore up the Agreement and make it pass the copyright writing bar. But I can't believe all the parts that SCO *didn't* quote in their Memorandum in Opposition to Novell's Motion to Dismiss [PDF - see page 12].

I have marked all the parts that seem unhelpful to SCO's cause. It references the exclusions in the Technology License Agreement, it limits the assets transferred (so the entire business apparently wasn't transferred lock, stock and barrel) to the Assets as defined in the Agreement, and it says pointblank that the Bill of Sale merely memorializes the sale and does not expand or add to the Agreement. If it seems to, the Agreement controls. In any case, I think SCO may have forgotten that at the May 11, 2004 hearing [PDF], it told the judge that their position is that the Agreement had an error and that it didn't reflect the true intent of the parties, which is why Amendment No. 2 was needed.

Keeping up with all the versions is a full-time job.

**********************

BILL OF SALE

Reference hereby is made to that certain Asset Purchase Agreement by and between The Santa Cruz Operation, Inc. and Novell, Inc. dated as of September 19, 1995, as amended by Amendment No. 1 to the Asset Purchase Agreement dated as of December 6, 1995 (together, the "Agreement"). Capitalized terms used in this Bill of Sale and not otherwise defined shall have the meanings ascribed to such terms in the Agreement.

In accordance with Article 1.1(a) of the Agreement, Seller, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby transfer, convey, sell, assign and deliver to Buyer, without recourse, representation or warranty except as otherwise expressly provided n the Agreement, all of the Assets. Excepted from the transfer of Assets pursuant to the preceding sentence are the rights reserved by Seller pursuant to that certain Technology License Agreement between Seller and Buyer dated as of December 6, 1995.

Seller does not sell to Buyer and Buyer does not purchase from Seller any interest in any of Seller's assets other than the Assets.

This Bill of Sale shall be binding upon the successors and assigns of Seller and shall inure to the benefit of the successors and assigns of Buyer as permitted under the Agreement.

It is acknowledged and agreed that this Bill of Sale is intended only to document the sale and assignment of the Assets to Buyer, and that the Agreement is the exclusive source of the agreement and understanding between Seller and Buyer respecting the Assets. Nothing in this Bill of Sale shall limit, expand or otherwise affect any of the representations, warranties, agreements or covenants contained in the Agreement. If any provision of this Bill of Sale is construed to conflict with any provision of the Agreement, the provision of the Agreement shall control.

IN WITNESS WHEREOF, Seller has cause this Bill of Sale to be duly executed as of the 6th day of December, 1995.

NOVELL, INC.

By:_____[signature]_____
Title: [Senior Vice President - Corporate Development]

Acknowledged this 6th day of December, 1995:

THE SANTA CRUZ OPERATION, INC.

By: _____[signature]____
Title: [Chief Executive Officer]


  


Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text | 327 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrrections here
Authored by: Anonymous on Wednesday, October 20 2004 @ 01:25 PM EDT
To help PJ and her minions keep the site tidy.

Loïc

[ Reply to This | # ]

The Troll section
Authored by: MadScientist on Wednesday, October 20 2004 @ 01:27 PM EDT

[ Reply to This | # ]

OT -- Off Topic here
Authored by: Anonymous on Wednesday, October 20 2004 @ 01:29 PM EDT
To keep other posts on topic...

Loïc

[ Reply to This | # ]

Official "The SCO Group" Positions
Authored by: MadScientist on Wednesday, October 20 2004 @ 01:30 PM EDT
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

P.J. says you must be on your very best behavior.

[ Reply to This | # ]

Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text
Authored by: DrStupid on Wednesday, October 20 2004 @ 01:31 PM EDT
"If any provision of this Bill of Sale is construed to conflict with any
provision of the Agreement, the provision of the Agreement shall control."

So, three months after the APA, no-one felt on either side that the exclusion of
all copyrights from the deal was a "scrivener's error." Everyone was
still peachy with the terms as worded at the time: that is, subject to amendment
1 (which leaves all copyrights excluded.)

That would appear to reinforce the theory that the strange wording in Amendment
2 was something brought about by the IBM royalty buyout being negotiated at the
time, and not an "oo crumbs we forgot about this back in September
1995" moment.

[ Reply to This | # ]

Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text
Authored by: blacklight on Wednesday, October 20 2004 @ 02:05 PM EDT
Regarding that BOS: every time SCOG attaches a doc to a pleading, I am
scratching my head and asking: "What was SCOG thinking?" As a
science-fiction fan, I wouldn't be surprised if SCOG dropped in on us through
Stargate-1 from the Twilight Zone.

[ Reply to This | # ]

Thanks, Frank...
Authored by: Anonymous on Wednesday, October 20 2004 @ 02:10 PM EDT
Thanks for thinking to ask for this document (and for doing so, of course).

Another hole filled in...

Larry N.

[ Reply to This | # ]

vocab/terminology question
Authored by: Anonymous on Wednesday, October 20 2004 @ 02:13 PM EDT
This Bill of Sale ... shall inure to the benefit of the successors and assigns of Buyer as permitted under the Agreement.

What precisely does that mean?

[ Reply to This | # ]

Phew...
Authored by: jaydee on Wednesday, October 20 2004 @ 02:16 PM EDT
For a minute or two I thought SCO might have had a smoking gun. IANALB (I am not
a lawyer but...) I don't see anything here that doesn't refer to the previous
agreements except for the fact that the sale has taken place. Still no specific
writing about copyrights.

---
If you find yourself in a fair fight... you didn't plan you mission properly.

[ Reply to This | # ]

SCO Strikes Again!
Authored by: Anonymous on Wednesday, October 20 2004 @ 02:34 PM EDT
Another Footbullet Operation. They'd have been better off not bringing up the
Bill of Sale.

[ Reply to This | # ]

SCO should move along...
Authored by: Anonymous on Wednesday, October 20 2004 @ 03:42 PM EDT
When I read parts of this bill taken out of context my heart stopped for a
moment. But now, as i read it in its entirety, i wonder how fat lies are allowed
for SCO without impunity.

"Nothing in this Bill of Sale shall limit, expand or otherwise affect any
of the representations, warranties, agreements or covenants contained in the
Agreement."

Haha, in other words, this Bill of Sale won't help SCO.

[ Reply to This | # ]

All very interesting but.....
Authored by: Anonymous on Wednesday, October 20 2004 @ 04:00 PM EDT
What does this have to do with Caldera (SCOX)? I don't recall seeing a single
document of tranfer of anything from The Santa Cruz Operation to Caldera let
along from Caldera to
SCOX...

[ Reply to This | # ]

Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text
Authored by: Rasyr on Wednesday, October 20 2004 @ 04:51 PM EDT
Egads! With every new document, it really does look like SCO has a water-tight
case. Too bad that all the water, and they themselves seem to be trapped within
the case...

[ Reply to This | # ]

Santa Cruz -> newSCO Bill of Sale ??
Authored by: nola on Wednesday, October 20 2004 @ 05:29 PM EDT
So we now have a transfer document covering Novell to Santa Cruz. Nice,
but that's not SCO.

Does anyone have any evidence relating to the transfer from Santa Cruz
to newSCO??

[ Reply to This | # ]

Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text
Authored by: tredman on Wednesday, October 20 2004 @ 05:48 PM EDT
This is exactly why it's important to read the supporting legal documents in a
case like this. Without them, it's just he said she said. While the arguments
are important, nothing speaks louder than evidence.

I do have to admit I was quaking a little bit when I heard that SCOX had
attached the Bill of Sale as an exhibit. My first gut reaction was, "Why
did they spring this now? Where was this when the suit first started?"
Now, after reading the details, the Bill of Sale is nothing more than a receipt.
The APA, along with it's children, the amendments, still stand as the
authority.

My confusion from this point is, why didn't they present this to Judge Kimball
during the Novell case? I would think that it would have been more pertinent
there. Did they realize that the Bill of Sale wouldn't hold up, since Kimball
already showed an inclination to believe IBM on the merits of the APA?

Also, wasn't one of the judges specifically quoted, either on a paper or on the
District Court web site, saying that they really frowned upon litigators taking
snippets of quotations and blow them way out of context? It may also have been
something that PJ said about most judges in general, but I do remember reading
it somewhere.

Tim

[ Reply to This | # ]

Effect on Judge Kimball's Reasoning re Asset Transfer
Authored by: Anonymous on Wednesday, October 20 2004 @ 09:37 PM EDT

Without access to this Bill of Sale, Judge Kimball's earlier decison to deny the motion to remand states in part:

Given the similarly ambiguous language in the APA with respect to the transfer of assets-seller "will" sell, convey, assign, and buyer "will" purchase and acquire-it is questionable on the face of the documents whether there was any intention to transfer the copyrights as of the date the amendment was executed.

It is now clear that the parties did attend to the detail of an explicit asset transfer writing as of the date of the original Asset Purchase Agreement. That is, the ambiguity that the Judge cited in the antecedent here has been resolved.

The Judge has already ruled that the APA was not a section 204(a) writing transferring copyrights, because of the clear exclusion in schedule 1.1(b) ("excluded assets"). (Actually, SCO appears to be trying to reopen this, claiming that copyrights were transferred based on schedule 1.1(a) ("included assets"). Isn't it bad form to ignore the Judge? It also doesn't seem to hold up to a reasonable interpretation of the parallel construction of these schedules: both schedules have a specific point on "Intellectual Property" - the schedule 1.1(a) point refers only to trademarks as being included assets in the agreement, while the schedule 1.1(b) point refers to all copyrights being excluded.)

The judge has also ruled that amendment no. 2 was by itself not a section 204(a) writing.

The remaining issue was whether amendment no. 2 plus the APA could be considered to constitute a section 204(a) writing. I'm not sure that I understand the Judge's reasoning in saying that this issue was at question given the apparent ambiguity of the asset transfer related to the APA itself. One interpretation is that Judge was thinking that if the parties intended an asset transfer with the APA yet failed to provide an explicit writing to the effect, then it might be reasonable to argue that the APA plus amendment 2 constitutes a similar implied asset transfer agreement. However, we now know the antecedent is false; there was an explicit writing of asset transfer with the APA. Does this mean that it is no longer reasonable to assume that the parties intended implicit asset transfer as applied to the APA plus amendment 2?

In other words, is it now all over with unless SCO can come up with an explicit section 204(a) transferring whatever copyrights were "required" by SCO to exercise its rights?

[ Reply to This | # ]

(OT) *Gasp* -- Can Laura DiDio Finally Be "Getting It"??
Authored by: Steve Martin on Wednesday, October 20 2004 @ 09:57 PM EDT

Yankee Group Workshop: Linux versus Windows versus UNIX: Comparing the Enterprise TCO and ROI

“Over the next 12 months, Yankee Group research indicates that eight out of 10 businesses will undertake a major migration in their respective environment, “ explains Laura DiDio, Yankee Group senior analyst. “For many organizations, this will be the first time since 1999--in advance of Y2K--that they’ve overhauled their networks. There is no denying Linux’ growing popularity as an alternative to UNIX and Windows, and we have designed this workshop to help users make the best migration decisions for their business.”

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

1995 Software Patents--??
Authored by: Night Flyer on Wednesday, October 20 2004 @ 10:12 PM EDT
Back in 1995, I don't remember much discussion about software patents --- none
in fact.

Also, from reading GROKLAW, I don't remember mention of any existing software
UNIX patents as old as 1995. (I'm sure I remember that Novell and SCO started to
apply in 2003.)

Probably there is no mention in the APA because there were none. --- Tell me if
I am wrong on this. ---

Copyrights? That's a different story, there has been mention of these throughout
(including USL vs BSD, and from numerous contributors to UNIX and Linux).

[ Reply to This | # ]

SCO's argument - more subtle that most realize
Authored by: Anonymous on Wednesday, October 20 2004 @ 10:47 PM EDT
IMHO:

Entire post IMHO, this is what I *believe* that SCO are trying to say... ( I
could be wrong, IANAL, this is all my *opinion* of what they are saying)

SCO's argument is the APA section excluding all copyrights is a scriveners
error, and the intention was to transfer copyrights as of the date of the APA.
SCO further argues that Amendment 2 corrects this "scriveners error".

Well that's it on the face of it, but there is IMHO more subtlelty than most
seem to realize to this argument.

Here is the argument in 3 steps:


STEP 1: SCO ARGUES THE APA IS SELF-CONTRADICTORY

Is it or isn't it about transfering the copyrights?

(a) Novell says no, pointing to the explicit exclusion of all copyrights

(b) SCO says "We [meaning Santa Cruz their alleged predecessor], were
buying the whole UNIX and UNIXware business." There is some language
consistent with this in the APA [although it's hard to find any language which
is both consistent and doesn't have caveats which could be read to support
Novell's position."

(c) SCO says in support of point (b), "we have a bill of sale". And
yes it's consistent, but again the similar types of caveat language appears.

(d) SCO argues (b) + (c) + (d), sayoing "We [meaning Santa Cruz their
alleged predecessor], were buying the whole UNIX and UNIXware business.... how
could we have bought the whole business, without the copyrights?".

So SCO concludes in this step, that (b)+(c)+(d) suggest that there is other
parts of the APA and Bill Of Sale which contradict the clause (a) that Novell
relies on.

Now if a contract contains self-contradictory clauses, there's a problem... how
can you know what it is supposed to mean? You start looking at external
(parol) evidence, other documents, etc.


STEP 2: SCO ARGUES NOVELL READ THE "SELF-CONTRADICTORY" CONTRACT SCO's
WAY....

SCO, having concluded the contract is self-contradictory (perhaps because of a
"scrivener's error"), now needs to look for evidence of what they
think it really means. Better yet, they want evidence that Novell read the
contract that SCO now reads it.

So what can they look for?

(i) They could look for evidence of intent of the parties

(ii) They could look for evidence supporting how the parties interpreted it
prior to it coming to litigation (i.e. 1995 to 2004)

(iii) They could look for other documents that clarify the intent.

(iv) They could look at what's the normal reading and intent of this type of
contracts, at least to avoid absurd results or readings


Now SCO claims to have all of these supporting their position...

(a) For point (i), they claim Chatlos testimony favors them

(b) For point (ii), they suggest that SCO marked its products and copyright SCO,
Novell went along with it, etc. i.e. Novell acquiesed or agreed to (or in the
last resort waived any contrary right) in SCO's interpretation.

(c) For point (iii), they point to the Bill Of Sale. As noted above, this
contains the same sort of caveats as the APA.

(d) For point (iii) they also point to Attachment E. In SCO's view, SCO bought
the whole UNIX and UNIXware business, and Attachment E is a document that lists
the copyright assets associated with the business. <--- this is a new point

(e) For point (iv) they also point to various cases saying copyrights should be
transfered with physical assets, and claim to have got all the physical assets.


Summarizing step 1 and step 2: Thus, according to SCO, even if the original
contract contain one clause supporting Novell's reading, there are other clauses
which contradict Novell's reading.... And the external evidence support SCO's
reading.


STEP 3: AMENDMENT 2

In SCO's view, Amendment 2 isn't a copyright transfer, it is just memorializing
(or recording or correcting the scrivener's error) that the copyrights
transfered in the original APA.

In SCO's view, Amendment 2 (at least as far as copyright transfer is concerned),
is not new, but just clearing up the allegedly contradictory language in the
APA, i.e. SCO gets the copyrights for the entire UNIX and UNIXware business.

In SCO's view, Amendment 2 is consistent with their step 1(b) and step 1(d).
Because it effectively says something like (sorry can't remember exact quote):
"All copyrights excluded except for those required for SCO to exercise its
rights in connection with its acquisiton of the UNIX and UNIXware business"
etc...

In SCO's view, SCO's acquistion of the UNIX and UNIXware business, basically
includes the entire business (including copyrights), and part of their evidence
that the business includes copyrights is Attachment E. <-- new



Quatermass
IANAL IMHO etc

P.S.
Please remember that I am only *opining* here what I *believe* SCO are saying.


There is nothing in this post (and nor should you assume) that any of the above
is necessarily my personal own opinion.

[ Reply to This | # ]

Ding! Ding! Ding! AMENDMENT ONE ONLY
Authored by: Anonymous on Thursday, October 21 2004 @ 12:06 AM EDT
Am I the only one who noted that the assets transferred are those in the
agreement plus amendment number ONE?

And that SCOX is relying in all their filings on the contents of amendment
number TWO.

Unless amendment number TWO was executed with Caldera/SCOX (was it?), it doesn't
MATTER if it transferred copyrights to Santa Crus, because Santa Cruz never
transferred THOSE to Caldera/SCOX!

This looks interesting...

[ Reply to This | # ]

SCO - red herring
Authored by: Anonymous on Thursday, October 21 2004 @ 01:47 AM EDT
the amendment 2 is later than the bill of sale - and does not transfer anything
unless requested. where are the requests????

[ Reply to This | # ]

Novell-Santa Cruz Bill of Sale December 6, 1995 - PDF and text
Authored by: Anonymous on Thursday, October 21 2004 @ 02:33 AM EDT
First of all, IANAL so don't take what I have to heart.

From all that I have gathered from experience, reading and whatnot, if its not
on the bill of sale (BOS) then you don't get it.

This BOS does not make any mention at all about the second APA therefore,
(AFAIK), the second APA is not binding. The only way that the second APA would
count would be a BOS with the new terms of the sale (ie acknowledging the
transfer of goods according to the agreement plus both APAs).

Now someone please correct me if I am wrong.

[ Reply to This | # ]

Ignore
Authored by: Anonymous on Thursday, October 21 2004 @ 03:32 AM EDT
That last paragraph says it all really, this document has no value to the court.

[ Reply to This | # ]

Yet another "name game"
Authored by: Anonymous on Thursday, October 21 2004 @ 10:07 AM EDT
Reference:

http://www.caldera.com/drdos (which, by the way, is no longer available from the
SCO website, but is still cached on Yahoo!)

"Caldera Inc. became Caldera Systems, Inc., which, in turn became Caldera
International, Inc. After Caldera Interantional Inc. purchased a majority of the
assets of The SCO Group, Inc. they continue as the legal entity name of Caldera
International, Inc. but are using the d/b/a/ of The SCO Group."

(This is a cut-and-paste, the original really did say "Interantional".
Brings Darl's "ranting" to mind.)

Funny how so many pages dealing with SCO have disappeared.

[ Reply to This | # ]

SCO Documents
Authored by: Anonymous on Thursday, October 21 2004 @ 10:13 AM EDT
Wondering if anyone has seen this:

http://contracts.onecle.com/alpha/6428.shtml

[ Reply to This | # ]

Three times
Authored by: GLJason on Thursday, October 21 2004 @ 02:12 PM EDT
So they decide on the APA and sign it on September 15, 1995. They sign the bill of sale to actually transfer the assets on December 6, 1995. Then, nearly a year later, they sign ammendment 2?

Sorry, the bill of sale says that only the assets in the APA + Ammendment 1 were sold. Specifically, ALL COPYRIGHTS were excluded from the sale.

SCO tries to say that the main thing they were buying was the copyrights. One has to wonder... If that is the case, why were ANY copyrights excluded from the assets transferred? If you are selling someone the copyrights, wouldn't you specifically put them in the "included" section?

[ Reply to This | # ]

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