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What's It All About? - Some Restatement Details
Friday, March 04 2005 @ 11:00 AM EST

I had occasion to interview Decatur Jones' Dion Cornett about the SCO restatement announcement. I asked him what is it all about, and he tells me this, "The issue arose because the company did not register as many shares with the SEC as it authorized in its stock plan in 2000."

Woops.

Here is the S-8 I found that I believe is the one in question, and Dion agrees it appears to be the one. As you can see, there were only 500,000 shares registered with the SEC in that S-8 related to the 2000 stock plan. Cornett explains, "They issued $1M in stock beyond 500k shares authorized." 

What happens now? "Now they basically have to buy back the shares that were granted as if they were never issued in the first place to clean things up.  The other option would be to file an amended S-8 which is messier. I suspect that they’ll earn an SEC inquiry letter in any event."

However, he also says that it's important to remember that accounting isn't a black and white thing:

"The second issue was a judgment call that in hindsight could have been better but wasn’t necessarily wrong.  What some people may not appreciate is that accounting is not black and white.  CFOs continuously have to make rather grey judgments – e.g. percentage of completion accounting, impairment tests, pension liability assumptions, tax treatment of NOL’s based on likelihood of continued profitability, allowance for bad debt, amortization vs expensing, recognition policies, depreciation schedules, FIFO or LIFO…  Two very different decisions could both be right but depending on other circumstances one more optimal than the other.  The general philosophy is to be conservative and consistent.   "The third issue was clean-up of something that was caught and fine if left alone but better if fixed.  

"On the timing of 10k filing, a decision first had to be made whether or not to restate, again a grey decision.  The rule is to err conservatively, which they did, despite the fact that no CFO wants to sign a restatement, and the 10k had to wait for the new numbers."

I also asked about the company buying back the shares that were not authorized. Could it be a kind of sweet deal for the executives?

"It's something to watch, the price and terms under which they are rebought.  To cover themselves I suspect that they’ll get a credible third-party valuation and pay some discount to that value.  Given the scrutiny, they would be foolish to play games here, but we’ll all be watching."

Cornett doesn’t own SCOX, Decatur Jones does not engage in investment banking, and none of his views expressed are related to his compensation. A few more details from Bob Mims here. Did you note who signed that SEC filing, the 2000 S-8, by the way? That "keen businessman" Ralph Yarro, Ransom Love and Ray Noorda too.


  


What's It All About? - Some Restatement Details | 156 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic (OT) here
Authored by: Naich on Friday, March 04 2005 @ 11:02 AM EST
Make any links

<a href="http://www.example.com">Clickable</a>

Lovely.

[ Reply to This | # ]

Correctoins
Authored by: Naich on Friday, March 04 2005 @ 11:03 AM EST
Go here.

[ Reply to This | # ]

  • Corrections - Authored by: seeks2know on Friday, March 04 2005 @ 11:17 AM EST
  • Snicker - Authored by: Anonymous on Friday, March 04 2005 @ 11:32 AM EST
    • Schadenfreude - Authored by: Anonymous on Saturday, March 05 2005 @ 10:23 AM EST
  • Correction - Authored by: Anonymous on Friday, March 04 2005 @ 01:40 PM EST
    • Correction - Authored by: PJ on Friday, March 04 2005 @ 03:45 PM EST
What's It All About? - Some Restatement Details
Authored by: montana on Friday, March 04 2005 @ 11:21 AM EST
I don't understand why it took SCO from October 2004 to March 2005 to figure
this out. Explanations?

---
Oro Y Plata

[ Reply to This | # ]

What's It All About? - Some Restatement Details
Authored by: Anonymous on Friday, March 04 2005 @ 11:46 AM EST
Pump and Dump for a worthless stock on a worthless company about to go belly up.
SEC needs to just sit someone in the Utah office right next to the CFO for the
durration.

[ Reply to This | # ]

Nice work PJ
Authored by: Anonymous on Friday, March 04 2005 @ 12:11 PM EST
Great to go to an authoritative source. It's fairly amazing what Dion Cornett
was able to find out, given the opaqueness of SCO's public statements.

Thanks for having the insight to call Dion, and sharing his findings with us.

Thad Beier

[ Reply to This | # ]

Rescission?
Authored by: Jude on Friday, March 04 2005 @ 12:16 PM EST
I thought a recission was simply an un-doing of a transaction. Why would there
be any question about the buyback price? Shouldn't it be exactly the same as
what was paid?

[ Reply to This | # ]

How many shares were involved?
Authored by: Anonymous on Friday, March 04 2005 @ 12:33 PM EST
There seems to have been a big trade this morning, around 130k. Does this
resemble the amount to be repurchased?

Tufty

[ Reply to This | # ]

Recission offer logistics
Authored by: Anonymous on Friday, March 04 2005 @ 01:22 PM EST
Here's an example of how a rescission offer might work, from here

"According to the rescission offer, retirement-plan participants who had losses in company stock could voluntarily return their shares to EarthLink in exchange for the purchase price of the securities plus interest. Anyone who made money on EarthLink's stock was not eligible for the rescission offer, but presumably few investors saw gains since share prices deflated from $24.56 per share immediately after the merger to $6.09 per share at the close of trading on July 15, 2002 -- the day Hunton & Williams filed the Form S-8. For employees who previously sold their shares for a loss, the company offered to credit their 401(k) accounts with an amount based on the original purchase price of the stock minus the lower sales price."

Here is another example.

SCO is only on the hook to buy back the shares for the price paid (i.e. option exercise price) plus interest. I think the ESPP shares were mostly purchased at lower than current prices and few people will accept the rescission offer.

[ Reply to This | # ]

Questioning the Voracity of Maureen O'Gara Journalistically
Authored by: vox_rox on Friday, March 04 2005 @ 02:09 PM EST
Questioning the Voracity of Maureen O'Gara Journalistically

Since we’re talking about the latest Maureen O’Gara article, let's just put some things into context.

Here we have a “journalist,” a title, by the way, that can be assumed by anyone with some basic credentials, who claims both to be the beacon of truth and the ultimate arbiter of who holds journalistic credibility and who does not. Yet, from that perspective, and after reading her story through several times, I stumble across this:

“SCO points out that the January 18 order is the second time the court has ordered IBM to produce the discovery. The first time was on March 3, 2004. SCO says it want it now.”

That’s right, it says: “SCO says it want it now. [sic]” I will just use my better judgment and let that sentence speak for itself.

Yet, the story continues until we come to this gem:

“When Linux Business Week related what IBM said, the story inexplicably set off a hail of some 30,000-40,000 hate mails from the open source community, led by the Groklaw paralegal propaganda site, attacking the veracity of our story.”

So, let's just look at the term “veracity” for a moment.

ve·rac·i·ty - 1: Adherence to the truth; truthfulness. 2: Conformity to fact or truth; accuracy or precision:

It’s true that fact and truth are measurable - they both relate to something real or proven. Yet O’Gara uses words such as “some 30,000-40,000” and “propaganda” which, by their very nature, are qualitative and based on judgment, not truth or fact. Veracity? Perhaps, rather than spewing words that she finds appealing, O’Gara ought to find words that more purposefully illustrate her position. That, of course, takes the work of a real journalist, not that of someone simply assuming the title.

To further illustrate O’Gara’s inability to fully understand her own language, she throws out this gem: “In Groklaw's Zoroastrian view...”

Once again, let's take a look at the meaning:

Zo·ro·as·tri·an·ism - 1) The religious system founded by Zoroaster and set forth in the Avesta, teaching the worship of Ahura Mazda in the context of a universal struggle between the forces of light and of darkness.

Note the phrase “The forces of light and darkness” contained in the definition. It is my supposition that she is referring to Groklaw's position that IBM has done nothing wrong and the SCO has done something wrong. But the terminology, specifically the reference to Zoroastrian philosophy, seems mightily out of context when speaking of facts that are placed before the courts. Yes, facts. That would be the veracity that Paula Jones exhibits by providing not only opinion, but also the facts and the truths as presented and documented in this case. And speaking of veracity, comparing a grass roots Web community like Groklaw to an esoteric religious belief is hardly the foundation upon which to base your own sense of veracity. Oh that word.

She then further veers away from the story when, in an about face to any sense of truth or fact, O’Gara takes personal aim and insults Jones by saying: “Ah, well, that’s the best you can expect from a paralegal.”

So, it is my opinion then (that’s right - opinion) that this article exhibits the best you can expect from someone who, because of their technology background and the fact that they own a computer with a word processor installed, has taken the leap of believing they are, in fact, a journalist.

But let’s explore this journalistic nature of Maureen O’Gara.

Her bio from G2 Computer Intelligence, Inc. states: “Since launching Client Server NEWS, she has stalked the aisles of the trade shows with a vengeance, leaving a trail of shaking, sweating VPs of many a computer company.”

So, are we to believe that this is reflective of journalistic process? I think not, unless you’re Mike Wallace. In the capacity of member of the mass media, it behooves one to remain objective and somewhat anonymous in order to find out what people really have to say. By allowing the persona to precede her, O’Gara is, in fact, ensuring that she will never get the truth from anyone due to the fact that they fear she may write something damaging about them, rightly or wrongly. Don’t forget, this is HER bio on HER Website that states this.

The bio goes on to say: “She haunts the corridors of the Microsoft powerbase and gives Client Server NEWS some of its sharp edge. Famous for her confrontational style in press conferences she is single-handedly the reason why most companies in the sector have abandoned having press conferences.”

So, not only does O’Gara burn bridges for herself in severely limiting her interview subjects due to her unlikable and unprofessional disposition, she destroys the conduit for other, more substantial, accredited journalists to also pursue stories for their publications. And she states this as if she were boasting some victory. It’s not. If true, and I have serious doubts about the “voracity” of that statement, then it is an absolute failure in journalistic terms.

So, what can we take away from O’Gara’s most recent foray into journalism, which also happens to contain her most recent attack on Groklaw in general and Paula Jones in particular? Really, not much. Although she quotes SCO legal counsel correctly, those words themselves are tinted with all the colours of deception. She also fails to verify that what she states as facts in the case are, in actuality, factual. In most instances, they are simple repetition of earlier bad journalism, and quoting a previous quote in an article is, as any bona fide editor will tell you, unacceptable.

I will continue to read Maureen O’Gara in the future as I find her lively style and lack of editing skills to be both entertaining and amusing. When I want the facts, I’ll read bona fide and accredited media reporting and, of course, visit Groklaw daily. This way I can either trust, or further verify through outside sources, the voracity of the content.

Pierre Hamel

---
---
There is no such thing as strong coffee - only weak
people.
---

[ Reply to This | # ]

Google ads revenue
Authored by: Anonymous on Friday, March 04 2005 @ 02:36 PM EST
linuxbusinessnes has lots of google ads on each page.

Earlier I made the connection that the bulk of people who would read those
articles would be the very people who would NOT be interesated,even adverse, to
the companies advertizing on the site.

So I clicked on the google feedback link, and told them about it.

Next is to tell the advertizers about linuxbusiness news.

And if that doesn't bring the message home, I'd encourage all readers to click
on the adertizer links, as well as blowing the same whistel to google, and the
advertizers.

While in the short term it will brin extra ad revenue to O'Gara, in the long run
linuxbusinessnews will be a aite-non-grata for the advertizers. Nobody likes
being ripped off.

[ Reply to This | # ]

What's It All About? - Some Restatement Details
Authored by: Anonymous on Friday, March 04 2005 @ 02:37 PM EST
> it's important to remember that accounting isn't a black and white thing:

No, it is red as well, and that is where the problems are.

[ Reply to This | # ]

A little more on AT&T's copyright veting
Authored by: Anonymous on Friday, March 04 2005 @ 03:21 PM EST
dds@doc.ic.ac.uk (Diomidis Spinellis)
Date: Mon, 3 Aug 1992 16:31:04 GMT

I seem to remember, that some public domain source code that making the rounds
of the net a number of years ago (five?) had a statement from an AT&T person
attached, stating that the code did not contain and was not
based on any AT&T intelectual property. It also gave a contact for further
enquires. The idea I got was, that if you had some code that could have been
AT&T's intellectual property you mailed it to someone at AT&T who told
you whether it was or not. Does anyone know whether
that procedure still exists, and if yes, why BSDI did not use it, if no why it
was dropped by AT&T?

Diomidis

++++++++++++++++++++++++

Thanks to Alan Cox's memory, I managed to locate the file I was talking about.
It is part of the uuslave distribution (an early UUCP clone) written by John
Gilmore. The file s named CERTIFIC.ATT and is dated Jun 8 1987; I enclose a
copy at the end of this message. An interesting point is, that John Gilmore had
almost definitely been exposed to Unix
source code at that time.

Diomidis
------------------------------------------------------------

dds@doc.ic.ac.uk (Diomidis Spinellis)
Wed, 5 Aug 1992 17:18:38 GMT

Thanks to Alan Cox's memory, I managed to locate the file I was talking about.
It is part of the uuslave distribution (an early UUCP clone) written by John
Gilmore. The files named CERTIFIC.ATT and is dated Jun 8 1987; I enclose a
copy at the end of this message. An interesting point is, that John Gilmore had
almost definitely been exposed to Unix source code at that time.


Date: Mon, 23 Mar 87 23:49:43 PST
From: ihnp4!attunix!gcss20!gcdwf
Message-Id: <8703240749.AA08028@hoptoad.uucp>
Apparently-To: hoptoad!gnu

John Gilmore,

Listed below is the source code for uuslave that you electronically mailed to me
on February 20, 1987. Our product management personnel have reviewed this code
and have determined that it was not derived from source code from versions of
our UNIX(r) operating system. If you have any further questions, please feel
free to call me at
1-800-828-UNIX.

David W. Frasure
AT&T UNIX Software Licensing

++++++++++++++++++++++

And finally a small note

dds@doc.ic.ac.uk (Diomidis D Spinellis)
Tue, 11 Aug 1992 21:36:41 GMT

Some have claimed that BSDI could not have implemented a free version of Unix in
the short period it took them:

"Perhaps the most important achievement of UNIX is to demonstrate that a
powerful operating system for interactive use need not be expensive either in
equipment or in human effort: UNIX can run on hardware costing as little as
$40,000, and less than two man-years were spent on the main system
software."


Dennis M. Ritchie and Ken Thompson
The UNIX Time-Sharing System
Communications of the ACM 17(7)July 1974

+++++++++++++++++

References:

http://www.dmst.aueb.gr/dds/news/103.html
http://www.dmst.aueb.gr/dds/news/101.html
http://www.dmst.aueb.gr/dds/news/98.html

The originalors of the e mails is at this adress

http://www.dmst.aueb.gr/dds/

+++++++++++++++++++

These maails seem to back up the earlier views discov red in the dungeons by Dr
S earlier this week. Please not that Frazures reply seems to antedate Mitzi
Bond's reply - which if I recall correctly was July 1987.

It seems that AT&T had a free copyright veting system for Unix in place at
least by March 1987 and made no claims to anything concerning methods and
concepts. I suspect this was set up after 1984 after the AT&T anti trust
case.

--

MadScientist

[ Reply to This | # ]

"The last thing I'm going to do..."
Authored by: Saturn on Friday, March 04 2005 @ 03:23 PM EST
"We're a public company and, with all the disclosure we have to do, the last thing I'm doing is telling a bunch of lies." -- Darl McBride, 2003-12-04

I hear echoes of Groucho Marx.

---
----------------------------------------
My own opinion, and very humble one too.
Which is probably why I'm not a lawyer.

[ Reply to This | # ]

O'Gara and USL/BSDi
Authored by: Anonymous on Friday, March 04 2005 @ 03:28 PM EST

If you listen to the syscon "live TV" piece, you will find that she
once was behind unigram.X, a UK-based UNIX newsletter. She used to take the same
militant position against BSDI as she now does against Linux. She was proven
wrong, while calling the BSD supporters communist hippies.

She has hated the gray-beards ever since. Do some google, and usenet searches on
unigram,unigramX, unigram.x and USL and BSD and BSDi, and you will see that she
has held the same crackpot views for over a decade. USL is the group what
use to own the UNIX rights that Darl now thinks he owns.

So I don't beliece there is much to the MS conspiracy. It is just about that old
tirebiter O'Gara continued barking over a lawsuit that she picked sides in and
lost, when she was still a stupid puppy. It is about nostalgia.

Clearly a nutty old dog.

[ Reply to This | # ]

Could IBM sue to escrow the payments.
Authored by: darkonc on Saturday, March 05 2005 @ 06:27 PM EST
Given that it seems pretty likely that SCO is going to lose big, to the point where it's executives are likely to end up being possibly liable, Might it be possible for IBM to sue to have this payment put into escrow?

Right now, it's looking like SCO doesn't have the money left to last out the end of this case, so when (if) IBM wins, there won't be much of a hide to take most of this out of, except for the executives.

Now, these sorts of things generally depend on the balance of the probabilities and balance of the conveniences... Given that the SCO executives having their stock being bot back would have had no expectation of this cash cow, with the stock now being worth 1/4 it's current value, there's no real inconvenience to them holding off a payment they had no right to expect.

As for probability of prevailing, just take a look at Kimball's last ruling.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

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