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Declaration of David Bradford, as text (Novell)

Wednesday, April 25 2007 @ 04:15 AM EDT

Here is the Declaration of David Bradford [PDF], as text, thanks to Groklaw's caecer.

Bradford is an attorney and at the time of the asset purchase agreement with Santa Cruz, he was the Novell executive in charge of the deal, the guy who hired Tor Braham, whose extraordinary declaration you have already read and which mentioned Bradford. Bradford confirms everything Braham told the court, and more. In a nutshell:

From 1987 to 2000, I was Senior Vice-president, General Counsel and Corporate Secretary....
12. The Asset Purchase Agreement means what it says: copyrights were not included as an asset; copyrights were specifically excluded from the asset transfer. The exclusion was intentional. Should any persons suggest otherwise, they are mistaken.

I think he's being polite. This is yet another killer declaration from Novell in support of its Motion for Summary Judgment on SCO's 1st Claim for Slander of Title and 3rd Claim for Specific Performance, one of the four new summary judgment motions Novell has just filed. Friday was the deadline for filing such motions in SCO v. Novell, and I checked just now to see if SCO had added any new ones, and there is nothing on Pacer showing any further summary judgment motions from SCO. So this is it. Maybe in more ways than one.

Bradford was at the board meeting the day before the APA was signed, the meeting that resolved that Novell would retain the copyrights:

13. I attended the Novell Board of Directors meeting held on September 18, 1995, or the day immediately prior to the execution of the Asset Purchase Agreement. The Novell-Santa Cruz transaction was the subject of that Board meeting. As Senior Vice-president and General Counsel of Novell and as the Novell executive responsible for implementing the Novell-Santa Cruz transaction into a binding, legal contract, I participated in the discussion. I even reviewed the terms of the Asset Purchase Agreement with the Board. As Secretary to the Board of Directors, I memorialized the meeting in Board Minutes, a true and correct copy of which I attach to this Declaration as Exhibit 1. As I recorded in those Minutes that I sent to the Board of Directors, in the meeting the Board:

RESOLVED:
...
Novell will retain all of its patents, copyrights and trademarks (except for the trademarks UNIX and UnixWare) ...

Like Braham, he not only remembers, he kept some paperwork, specifically a memo he send to the board confirming that Novell would be retaining the licensing revenue from SVRX licenses, and he states plainly that it did not mean binary licenses only. And Novell retained control rights, specifically because of a deal in the works regarding HP, which is also mentioned in the board minutes. Not only that, but he tells the court that Novell has done other deals where it sold assets but retained the copyrights. Novell sold TUXEDO to BEA in 1996, the same time frame as the Santa Cruz deal, and Novell did not transfer copyrights to BEA. So much for SCO's assertion that it never happens that way.

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

MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[address]
[phone]
[fax]

ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address]
[phone]
[fax]

Attorneys for Defendant Counterclaim-Plaintiff Novell, Inc.

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware corporation, Plaintiff, vs. NOVELL, INC., a Delaware corporation, Defendant.	DECLARATION OF DAVID BRADFORD Case No. 2:04CV00139 Judge Dale A. Kimball

I, David Bradford, declare as follows:

1. The statements made in this Declaration are based on my personal knowledge. In connection with this Declaration, I have also reviewed documents I authored or received contemporaneous to the transaction discussed herein. I have attached several of these documents as Exhibits to this Declaration.

2. I am an attorney duly licensed to practice law in the state of California. I have an undergraduate degree and JD degree from Brigham Young University. I also have an MBA from Pepperdine University.

3. I was employed by Novell, Inc. from 1985 to 2000 in various legal and business capacities. From 1987 to 2000, I was Senior Vice-president, General Counsel and Corporate Secretary. My responsibilities included overseeing legal, security, government relations and, from time to time, corporate development functions at Novell. During this period of time, I also was part of a group of executives that comprised the Executive Staff, which advised Novell's President and Chief Executive Officer regarding business decisions for the company. In addition, I was a Secretary to the Novell Board of Directors. I participated in strategic management decisions. I led Novell through a number of complex transactions, including acquisitions, asset sales and public offerings.

4. In 1995, Novell decided to sell certain UNIX-related assets that it had acquired in 1993 from AT&T's UNIX System Laboratories subsidiary. A company called Santa Cruz Operation, Inc. ("Santa Cruz") surfaced as a prospective buyer. After a series of executive-level discussions during the summer of 1995, I was tasked, in my role as Senior Vice-president and General Counsel, with overseeing the negotiation and drafting of a contract between Novell and Santa Cruz that would protect Novell's interests.

5. I retained the law firm of Wilson, Sonsini, Goodrich & Rosati, then Novell's regular outside counsel, to negotiate and draft the agreement between Novell and Santa Cruz. The Wilson team was led by Tor Braham, an experienced partner in that firm who was already

familiar with Novell's business. In fact, Tor had negotiated Novell's purchase of UNIX assets from USL in 1993.

6. I charged Tor Braham with the responsibility of putting together the necessary agreements to protect Novell's interests. He was the principal drafter of what became the Asset Purchase Agreement executed on September 19,1995. Tor Braham communicated directly with me during the drafting and negotiation process, including sending me drafts of the Asset Purchase Agreement.

7. The Novell-Santa Cruz transaction took on a more complex form due to various concerns that arose during the course of the negotiations. For example, at the outset, Novell had been hopeful that the transaction would be a cash deal. It became apparent, however, that Santa Cruz would not be able to come up with the requisite cash to buy all of the UNIX assets that Novell had purchased from USL in 1993, as well as Novell's UnixWare business. Among other things, this resulted in an agency relationship, under which Santa Cruz would collect and pass through a revenue stream for SVRX contracts and Novell would retain control over the SVRX licensing arrangements.

8. There also arose serious concerns about Santa Cruz's viability as a company. Santa Cruz was not the most financially stable company. We thus became focused on building in protections for Novell in the event that Santa Cruz went bankrupt.

9. Because of these concerns, during the negotiations I discussed with Tor Braham the need to increase Novell's protections in the transaction, including but not limited to the need to retain Novell's intellectua1 property rights in UNIX and UnixWare. This retention of intellectual property rights was implemented with an eye to protecting Novell's interest in the significant revenue stream that Novell would be retaining from SVRX source code. Novell's copyright ownership would permit Novell to continue to have rights to this revenue, should Santa Cruz go bankrupt.

10. The Wilson team drafted a schedule of assets to be included in the asset transfer and a schedule of assets to be excluded from the transfer. These schedules specifically addressed how intellectual property rights in UNIX and UnixWare would be treated in the deal. Copyrights were not included as an asset; instead copyrights were specifically excluded. It is my understanding that the Wilson team exchanged these schedules with representatives of Santa Cruz prior to the execution of the Asset Purchase Agreement.

11. In its final form, the Asset Purchase Agreement executed on September 19, 1995 included a Schedule 1.1(a). Schedule 1.1(a) specifically identified the "Intellectual Property" included in the assets to be transferred; it only identified certain UNIX and UnixWare trademarks. The Asset Purchase Agreement also contained an "Excluded Assets" list in Schedule 1.1(b); this list provided that certain "Intellectual Property" was excluded from the asset transfer, including "[a]ll copyrights and trademarks, except for the trademarks UNIX and UnixWare." It also excluded "[a]ll patents."

12. The Asset Purchase Agreement means what it says: copyrights were not included as an asset; copyrights were specifically excluded from the asset transfer. The exclusion was intentional. Should any persons suggest otherwise, they are mistaken.

13. I attended the Novell Board of Directors meeting held on September 18,1995, or the day immediately prior to the execution of the Asset Purchase Agreement. The Novell-Santa Cruz transaction was the subject of that Board meeting. As Senior Vice-president and General Counsel of Novell and as the Novell executive responsible for implementing the Novell-Santa Cruz transaction into a binding, legal contract, I participated in the discussion. I even reviewed the terms of the Asset Purchase Agreement with the Board. As Secretary to the Board of Directors, I memorialized the meeting in Board Minutes, a true and correct copy of which I attach to this Declaration as Exhibit 1. As I recorded in those Minutes that I sent to the Board of Directors, in the meeting the Board:

RESOLVED:
3
...
Novell will retain all of its patents, copyrights and trademarks (except for the trademarks UNIX and UnixWare) ...

(See Exhibit 1 at 2.)

14. The Board meeting minutes are accurate in their description of the intellectual property assets Novell retained.

15. Under the Asset Purchase Agreement, Novell retained the right to receive 95% of the revenue from licenses of SVRX software. I confirmed our retention of SVRX licensing revenue to the Board of Directors in a memorandum on September 15,1995, a true and correct copy of which I attach as Exhibit 2. I told the Board: "For example, we will be retaining our traditional royalty stream from UNIX SVRX source code which was approximately $50 million for FY 1995." (Exhibit 2 at 1. I underscored "retaining" in my original memo.) Again, at the September 18, 1995 Board of Directors meeting, I informed the Board of this retained revenue stream, which was referred to as SVRX Royalties in the contract. (Exhibit 1 at 2.) The term SVRX Royalties was drafted so as to be broadly applicable to "all royalties, fees and other amounts" from SVRX agreements, and was not limited to monies paid under binary licenses; Novell retained 95% of all monies from SVRX agreements, source and binary included.

16. Under the Asset Purchase Agreement, Novell also retained control over the licensing arrangements with SVRX customers. As indicated in the Asset Purchase Agreement, this right applies to all SVRX Licenses; it was not restricted to binary licenses of SVRX. In particular, Novell intended to use its control over the SVRX license agreements to do "buyouts" of SVRX agreements or, if necessary, to provide source rights to Hewlett Packard in its development of a 64-bit UNIX technology -- a development effort that I memorialized in the September 18, 1995 Board Minutes. (Exhibit 1 at 1, 3.)

17. I was presented the final Asset Purchase Agreement between Novell and Santa Cruz on the day it was to be executed. I was to review it and approve it for final signature by Bob Frankenberg, Novell's CEO at the time. I reviewed the contract and considered it to reflect

the intent that I have described above in this Declaration. Indeed, I wrote a memorandum (a true and correct copy of which I have attached as Exhibit 3), reflecting my approval of the Asset Purchase Agreement for signature by Mr. Frankenberg. I still agree with what 1 said nearly twelve years ago:

The purpose of this memorandum is to let you know that I have reviewed the final document and find the same to be an accurate reflection of the business and legal terms and conditions negotiated between the parties ...

18. Novel has retained intellectual property rights in other transactions involving the sale of part of its business. In late 1995 and early 1996 I was part of a Novell business team evaluating the future ownership direction of Novell's TUXEDO software business, which we also had acquired from AT&T. On January 24, 1996, Novell entered into an agreement with BEA Systems, Inc., in which Novell transferred certain assets relating to its TUXEDO software product. In that transaction, Novell specifically retained the copyrights in the TUXEDO software.

I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.

Executed on this 19^th day of April, 2007 in Newport Beach California

[signed]
David Bradford

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of April, 2007, I caused a true and correct copy of the foregoing DECLARATION OF DAVID BRADFORD to be served to the following:

Via CM/ECF:

Brent O. Hatch
Mark F. James
HATCH JAMES & DODGE, P.C.
[address]

Stuart H. Singer
William T. Dzurilla
Sashi Bach Boruchow
BOIES, SCHILLER & FLEXNER LLP
[address]

David Boies
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
Devan V. Padmanabhan
John J. Brogan
DORSEY & WHITNEY, LLP
[address]

Via U.S. Mail, postage prepaid:

Stephen Neal Zack
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Heather M. Sneddon

Declaration of David Bradford, as text (Novell) | 271 comments | Create New Account

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Declaration of David Bradford, as text (Novell)

Authored by: Anonymous on Wednesday, April 25 2007 @ 04:36 AM EDT

Brigham Young University. Hmmm, that might go down well with a Utah jury if
things come to that.