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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]


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