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| IBM Subpoenas Ernst & Young and Arthur Andersen |
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Wednesday, November 09 2005 @ 07:05 PM EST
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We saw where IBM sent a subpoena duces tecum, the kind asking for documents, to KPMG. Now we find out they did the same thing with Ernst & Young [PDF] and Arthur Andersen [PDF].
The subpoena sent to Ernst & Young is identical to the one sent to KPMG. They want all documents related to the 1993 AT&T-Novell USL/UNIX transaction -- as in what Novell actually paid and any documents that might shed light on the allocation of the purchase price and any impairment of the value of the assets; "any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from AT&T or USL to Novell"; and any license agreements of intellectual property. They want also all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from Novell to Santa Cruz in 1995 and "the final report and all documents supporting any impairment analysis or valuation of intangible assets concerning Unix or Unix-related assets from 1995 to 2001." They want the same thing from Arthur Andersen regarding the 1995 Novell to Santa Cruz transaction. But they ask Arthur Andersen for something else, too. They ask them for documents related to the 2000 and 2001 Santa Cruz-Caldera Systems-Caldera International deal. They specifically ask for the following: Santa Cruz-Caldera Unix Transaction Documents 1. All documents in your possession, custody, or control that refer, reflect or relate to the Agreement and Plan of Reorganization, dated August 1, 2000 and amended on September 13, 2000, December 12, 2000, and February 9, 2001 (the "Agreeement and Plan") by and between Santa Cruz, Caldera Systems, Inc., and Caldera International, Inc., including, without limitation, any and all transactional, due diligence, or financial documents related to the sale or transfer of assets in connection with that transaction together with any reports, analyses, valuations, appraisals, or opinions in your possession, custody, or control related to the transaction. 2. Any and all transactional, due diligence, or financial documents concerning the sale or transfer of Unix or Unix-related assets from Santa Cruz to Caldera (defined below). 3. The following documents, specifically referred to in the Agreement and Plan: a. Attachment A to the Third Amendment (or the amended Exhibit 1.4(b),
b. Exhibit 1.4(c)(i)(B),
c. Attachment B to the Third Amendment (or the amended Exhibit 13.15A),
d. Attachment C to the Third Amendment (or the amended Exhibit 13.15D),
e. Attachment D to the Third Amendment (or the amended Exhibit 13.15D),
f. Exhibit 13.15C,
g. Attachment E to the Third Amendment (or the amended Exhibit 13.15E). 4. The final report, including supporting exhibits, and all work papers supporting the Impairment/Valuation Analysis, incorporated in Caldera's October 31, 2001 10K filing with the United States Securities and Exchange Commission, concerning the Server and Professional Services Group acquired from Santa Cruz, including but not limited to the following:
a. Drafts
b. Market research
c. Historical financial information for the Unix business.
d. Financial projections for the Unix business.
e. Notes.
f. Client interviews,
g. Discount rate support and analysis,
h. Guideline or company research or analysis,
i. Any other information used to allocate the purchase price of the acquisition for financial reporting purposes.
5. The final report and all documents supporting any impairment analysis or valuation of intangible assets concerning Unix or Unix-related assets, from 2001 to the present.
6. Any and all documents, communications, or correspondence, whether formal or informal, concerning the foregoing topics. What puzzles me is the list in clause 3. I am no SEC expert, but wouldn't you expect to be able to find documents like those listed in SEC filings?
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| Authored by: xtifr on Wednesday, November 09 2005 @ 07:15 PM EST |
The only thing I notice off the bat is that in 3.g, the "E" in
"Attachment e" is in lower-case, in contrast to all the others. Also,
the PDF links seem to be bad? Maybe I'm doing something wrong.
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Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 09 2005 @ 07:17 PM EST |
Maybe the idea is to compare what was prepared and delivered to what was
submitted?[ Reply to This | # ]
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| Authored by: John Hasler on Wednesday, November 09 2005 @ 07:20 PM EST |
> What puzzles me is the list in clause 3. I am no SEC
> expert, but wouldn't you expect to be able to find
> documents like those listed in SEC filings?
Aren't these exhibits the ones the dog ate?
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Licensed under the GNU General Public License[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Wednesday, November 09 2005 @ 07:20 PM EST |
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| Authored by: Anonymous on Wednesday, November 09 2005 @ 07:20 PM EST |
Clause 3 is probably just an easier way to get these entered into the court
record, I would imagine. Saves a step.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 09 2005 @ 07:32 PM EST |
The ones that Yarro's Canopy was fighting?
Were those subpoenas complied with in full, without a fight, after
Yarro/Christensen/Mott left?
or did these 3 destroy evidence, or perhaps remove it from Canopy possession?
[ Reply to This | # ]
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| Authored by: PM on Wednesday, November 09 2005 @ 08:40 PM EST |
IBM might as well go for broke and subpoena PriceWaterhouseCoopers and Deloitte
Touche Tomatsu while they are at it - they will have all bases covered then.[ Reply to This | # ]
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| Authored by: braverock on Wednesday, November 09 2005 @ 08:46 PM EST |
| Agreement and Plan of Reorganization - Caldera Systems Inc. and The
Santa Cruz Operation Inc
Labeled as "Execution Copy"
Regards,
-
Brian [ Reply to This | # ]
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| Authored by: McLae on Wednesday, November 09 2005 @ 09:04 PM EST |
Interesting what different bait they use on the hook.
SCO looks for source code that may not exist, and may not matter.
IBM looks for bean counter bread crumbs.
Any bets on who catches something? :)
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Thomas (The McLae)[ Reply to This | # ]
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| Authored by: blacklight on Wednesday, November 09 2005 @ 09:12 PM EST |
IBM expects certain documents from SCOG. SCOG refuses, claiming privilege. IBM
gets the docs it is looking for from third parties. At some point, SCOG will
turn over those documents IBM wants (and already has) because SCOG wants to
appear to be cooperative, and knows it is pointless to hold on to information
that IBM has.
IBM has no reason to trust SCOG or its cooperativeness. The documents that IBM
will have from third parties will provide independent verification as to whether
SCOG is really turning over the docs it is supposed to.
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Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 09 2005 @ 10:11 PM EST |
If the docs they give don't match the SEC documents, it's perjury. If the other
documents don't match the documents (analysis, conclusions, etc.) then AA is
open to charges of malfeasance.
Clever, very clever. No wiggle room there.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 09 2005 @ 10:38 PM EST |
I can see that if A+B agreed to a contract prepared by C and checked by D&E
that A+B would need to keep copies for as long as the agreement was in force.
What I wonder is how long C, D, and E would keep them around. Is there
something like a 7 year limit for 3rd parties to hold these documents?[ Reply to This | # ]
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| Authored by: cmc on Wednesday, November 09 2005 @ 11:13 PM EST |
Although I'm half-joking, what's the possibility that SCO will somehow try to
claim privilege on all of these documents in an attempt to 1) prevent anyone
from seeing them, and 2) delay delay delay?
cmc
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| Authored by: Anonymous on Thursday, November 10 2005 @ 12:27 AM EST |
The exhibit filed may or may not be incomplete, depending on materiality and
disclosure in other places. SEC Regulation S-K provides that:
"Schedules (or similar attachments) to [plans of merger, etc.] shall not be
filed
unless such schedules contain information which is material to an investment
decision and which is not otherwise disclosed in the agreement or the
disclosure document. The plan filed shall contain a list briefly identifying the
contents of all omitted schedules, together with an agreement to furnish
supplementally a copy of any omitted schedule to the Commission upon
request."
Regards,
Mark Wilson[ Reply to This | # ]
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