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SCO Added to "New Russell Microcap Index" and Some SEC Filings
Thursday, July 21 2005 @ 07:55 AM EDT

SCO has put out a press release that they have been added to the "New Russell Microcap Index". My first reaction was, what's that? My second reaction was, so? My third was, how'd SCO get chosen for anything? I went to visit the Russell Methodology page, where they say their purpose is the following:
Act as a performance standard for active managers.
Serve as a proxy for asset allocation purposes.
Become a purchasable and replicable vehicle for passive investment strategy.
Serve as a proxy? For whose asset allocation purposes? Maybe one of you brainiacs can explain it to me. Here's a bit about Russell Indexes and how they are ranked number one in institutional usage. If you wish to read Russell's PDF providing an in-depth look at their methodology, there's a link to it on the methodology page.

At that point, I was feeling a little bit like when I watch a movie love scene and a couple are under the covers, from their head to their toes. You see movement, and you know generally what must be going on, but you can't tell for sure exactly who is doing what. So, I decided to keep digging.

The press release tells us this:

SCO Added to New Russell Microcap Index

Thursday July 14, 8:00 am ET
The SCO Group Was Added to the Russell Microcap Index July 1, 2005

LINDON, Utah, July 14 /PRNewswire-FirstCall/ -- The SCO Group, Inc. ("SCO") (Nasdaq:SCOX - News), the owner of the UNIX® operating system and a leading provider of UNIX-based solutions, today announced its inclusion by Russell Investment Group in the new Russell Microcap(TM) Index. Membership in the index took effect July 1 and will remain in place for one year. The Russell Microcap Index measures performance of the microcap segment of companies, representing less than 3 percent of the U.S. equity market.

"We are pleased to be selected for this index," said Bert Young, chief financial officer, The SCO Group, Inc. "Our inclusion on this index should provide greater stock visibility among the investment community. It's nice to be in the company of these corporations that meet the criteria for being listed on the Russell Microcap Index and shows that we are in good standing in meeting the requirements and methodology for being listed on this index."

The newly launched Russell Microcap Index, which debuted on July 1, is comprised of the smallest 1,000 securities in the small-cap Russell 2000 Index along with the next smallest 1,000 companies, based on a ranking of all U.S. equities by market capitalization. A complete listing of the requirements for inclusion in Russell Indexes can be found at http://russell.com/us/indexes/us/methodology.asp.

Russell indexes continue to rank as the most widely used by investment managers and institutional investors for index funds and as benchmarks for both passive and active investment strategies. More than $2.5 trillion in assets currently are benchmarked to them. Investment managers who oversee these funds purchase shares of member stocks according to that company's weighting in the particular index. Russell recently posted the complete index membership list at www.russell.com/US/Indexes.

About Russell

Russell, a global leader in multi-manager investment services, provides investment products and services in more than 39 countries. Russell manages more than $135 billion in assets and advises clients worldwide representing $2.3 trillion. Founded in 1936, Russell is a subsidiary of Northwestern Mutual and is headquartered in Tacoma, Washington, with additional offices in New York, Toronto, London, Paris, Sydney, Auckland and Tokyo.

Headquartered in Tacoma, Washington. Hmm. Is that anywhere near Seattle, I found myself asking? You don't suppose. . .

Then I noticed the Russell page, where they explain how they can help you "achieve more":

If you're a busy person and don't want to play around with your investments, Russell offers opportunities to get the type of solid investment program that some of the world's largest, most sophisticated investors use.

We bring together some of the world's best money managers to meet our clients' needs.

We do this through industry-leading money manager research used by corporate investors like AT&T, Boeing, United Airlines, and organizations like the Bill & Melinda Gates Foundation.

Well, well. What do you know? Look who just showed up. Mr. Gates. Purely coincidentally, I'm sure. Um. So Microsoft's little buddy just got chosen for this index, and that means, what? More investment money funnelled into SCO? No? Then what? Here's the complete client list.

Another company chosen for the list, Isonics, also put out a press release, and they explain what they think it means:

"Isonics is excited to see that one of the most respected names in financial and equities research has developed this new and powerful tool for tracking the marketplace performance of innovative companies such as ours," said James E. Alexander, Chairman and CEO of Isonics. "In recent years, smaller-cap equities such as Isonics have grown sharply in their importance among institutional and retail investors. We believe the Russell Microcap Index will assist all investors in their decision-making and portfolio planning."
Ah. So it's sounding like they think it's like an arrow that points at you and reads, "Invest Here." Another company chosen, IMPCO Technologies, gives us a smidge more:
Russell indexes are widely used by investment managers and institutional investors for index funds and as benchmarks for both passive and active investment strategies. More than $2.5 trillion in assets currently are benchmarked to them. Investment managers who oversee these funds purchase shares of member stocks according to that company's weighting in the particular index.
And U.S. Energy's press release spells it out plainly enough that even I get it:
"We are pleased with our inclusion in this new index," said Keith G. Larsen, U.S. Energy Corp. President. "Our inclusion will help generate greater interest in our stock at an institutional level."
And one more, Nanometrics:
Nanometrics acknowledges its addition to the Russell Microcap Index as an indicator that the company is performing well in the eyes of the market's most influential investors. "While we continue to make positive strides internally to meet our long-term business objectives, recognition by the investment community is great affirmation that our past efforts did not go unnoticed," stated Nanometrics CEO John Heaton.
Russell has its own explanation:
Membership in Russell's U.S. equity indexes -- widely used as benchmarks for both passive and active investment strategies -- is determined primarily by market capitalization rankings and style attributes. Recent studies by some large brokerage and investment firms that preview Russell's annual reconstitution process and attempt to predict subsequent changes to the indexes have proven once again to be generally accurate.
Let me guess. It was SCO's "style attributes" that got it chosen. I'm just guessing now, but off the top of my head, what do you think? Think maybe SCO isn't going to run out of money after all?

SEC Filings

Thought you'd heard the last of SCO's claims about AIX on Power after Judge Kimball denied their motion to amend the complaint a third time? Don't be silly. This law firm is made up of werewolves, I gather, and they just keep coming back and back, no matter what you do. In a recent 424B3 filing with the SEC, a prospectus supplement dated July 15, 2005, SCO says this about that denial:

We have also filed a motion for leave to file a third amended complaint in order to assert an additional copyright claim against IBM in the case. The Court heard argument on that fully briefed motion on April 21, 2005, and took the matter under advisement. In its July 1 order, the Court denied our motion. The Court first allowed IBM to narrow the scope of its Ninth Counterclaim, and having done so concluded that our proposed new claim would expand the litigation and delay its resolution. The Court also opined that it appears that we or our predecessor-in-interest either knew or should have known about the conduct at issue in the new claim before we filed our original Complaint. We therefore will not pursue additional copyright remedies in this case regarding IBM's alleged misuse of our code in its AIX product as set forth in the proposed amended complaint. We have explained in briefing and argument before the Court, however, that the predicate facts of the proposed copyright claim are already in the case as part of other claims.
Oh great. More hijinks. Does that mean we have to listen to more leaked emails?

As regards the denied G2 motion, do I detect a certain distancing from a party who remains nameless in SCO's account?

In addition to the materials that have been publicly filed with the Court, certain information has been filed under seal in accordance with the protective order entered in the case. On November 30, 2004, a third party moved to intervene in the case for the purpose of challenging the sealing of certain documents filed with the Court, and additional groups subsequently joined in that motion. Following argument on April 26, 2005, by Order dated April 28, 2005, the Court denied the intervention motion. In its Order, the Court set forth various procedures to minimize the risk that documents would be improperly filed under seal. The parties have since directed the Clerk of the Court to unseal numerous previously sealed filings.
See what I mean? "A third party." It doesn't look like the case filed in India is going so well, by the way. They report it this way:
        In April 2003, a former Indian distributor of our company filed a claim in India, requesting summary judgment for payment of $1,428,000, and an order that we trade in India only through the distributor and/or give a security deposit until the claim is paid. The distributor claims that we are responsible to repurchase certain software products and to reimburse the distributor for certain other operating costs. The distributor additionally requested that the Indian courts grant interim relief in the form of attachment of local assets. Management does not believe that our company is responsible to reimburse the distributor for any operating costs and also believes that the return rights related to any remaining inventory have lapsed. Discovery has commenced and hearings on the requests for interim relief have been held and are ongoing. We intend to vigorously defend this action.

        Pursuit and defense of the above-mentioned matters will be costly, and management expects the costs for legal fees and related expenses will be substantial. The ultimate outcome or potential effect on our results of operations or financial position of the above-mentioned matters is not currently known or determinable.

And this SC 13G filling shows that somebody still thinks they can make some money investing in SCO. The word "offshore" pops up again:

Item 2(a). Name of Person Filing:

(i) Jet Capital Investors, L.P. (the "Investment Manager"), a Delaware limited partnership which serves as investment manager to Jet Capital Concentrated Offshore Fund, Ltd. (the "Offshore Fund") and certain discretionary accounts, (the discretionary accounts and the Offshore Fund are collectively referred to herein as the "Funds") with respect to shares of common stock directly owned by the Funds.

(ii) Jet Capital Management, L.L.C (the "General Partner"), a Delaware limited liability company which serves as the general partner of each of Jet Capital Arbitrage & Event Fund I, L.P. and Jet Capital Concentrated Fund, L.P. (together, the "Partnerships"), with respect to shares of common stock directly owned by each of the Partnerships.

(iii) Alan S. Cooper ("Mr. Cooper"), who, together with Mr. Mark, is responsible for the supervision and conduct of all investment activities of the Investment Manager and the General Partner, including, without limitation, for all investment decisions with respect to the assets of the Funds and the Partnerships, with respect to shares of common stock directly owned by the Funds and the Partnerships.

(iv) Matthew Mark ("Mr. Mark"), who, together with Mr. Cooper, is responsible for the supervision and conduct of all investment activities of the Investment Manager and the General Partner, including, without limitation, for all investment decisions with respect to the assets of the Funds and the Partnerships, with respect to shares of common stock directly owned by the Funds and the Partnerships, and with respect to shares of common stock directly owned by him.

Here's SCO's 8K filed on July 15, to round out our collection today, with an Exhibit attached, a Notice of Grant of Stock Options, which spells out what happens to the options if someone dies or goes crazy or the corporation ceases to exist. Didn't they just file something like that in April? Why, yes. Yes, they did. Here's why they needed to change it, according to the 8K's explanation:

Item 1.01. Entry into a Material Definitive Agreement.

        On July 13, 2005, the Compensation Committee of the board of directors (the "Board") of The SCO Group, Inc. (the "Company") adopted a revised Form Notice of Grant of Stock Options (the "Form Grant Agreement") for The SCO Group, Inc. 2004 Omnibus Stock Incentive Plan (the "Incentive Plan"). The Form Grant Agreement is used to grant to employees, non-employee members of the Board or the board of directors of any parent or subsidiary of the Company and consultants a specified number of options that may be exercised at the exercise price specified therein, in accordance with the terms of the Incentive Plan. The Form Grant Agreement also provides for the issuance of either incentive stock options or non-qualified stock options and a specified vesting schedule and expiration date for the stock options. The Form Grant Agreement has substantially the same terms as the Form Notice of Grant of Stock Options previously used, except for changes that were deemed necessary to make the Form Grant Agreement more consistent with the Incentive Plan, including the provision governing how certain significant corporate transactions will impact the holders of outstanding stock options.

        The terms and conditions of the revised Form Grant Agreement filed as Exhibit 99.1 to this Form 8-K are hereby incorporated by reference herein and replace the prior Form of Notice of Grant of Stock Options for the Incentive Plan filed as Exhibit 10.35 to the Company's Form 10-K, filed on April 1, 2005.

Here's the April 1st 10K, and the Exhibit 10.35 is here, if you'd like to parse out the changes. Here's what I notice that has been changed, first in the section titled Special Termination of Option, and then in the Appendix definitions:

 

April NoticeJuly Notice
  (a)                                  In the event of a Corporate Transaction, this option shall terminate and cease to be outstanding, except to the extent assumed by the successor corporation or parent thereof in connection with such Corporate Transaction.   (a)   In the event of a Corporate Transaction, any options that the Optionee holds that are exercisable will remain exercisable until their expiration, and any options that the Optionee holds that are not exercisable will expire on the date of the Corporate Transaction, unless otherwise provided in an agreement between the Corporation and the Optionee, or the Committee, on a case-by-case basis, elects in writing to waive termination. Any vested, exercisable options that the Optionee holds will be cashed out, converted to an option of the acquiring entity, assumed by the acquiring entity or otherwise disposed of in the manner provided for in any shareholder-approved agreement or plan governing or providing for such Corporate Transaction or, in the absence of such governing provisions, as decided by the Committee consistent with the terms of the Plan.
C.   Cause shall mean any of the following:  (i) Optionee’s material breach of any employee, confidentiality, or other employment related agreement with the Corporation, (ii) Optionee’s violation of the Corporation’s policies or procedures set forth in the Corporation’s Policies and Procedure Manual, as amended from time to time, or (iii) Optionee’s conviction of or entrance of a plea of nolo contendere to a felony or to any other crime punishable by incarceration. C.    Cause when used in connection with the cessation of Service of the Optionee by the Corporation, shall mean (i) the willful and continued failure by the Optionee substantially to perform his duties and obligations to the Corporation (other than any such failure resulting from his incapacity due to physical or mental illness) or (ii) the willful engaging by the Optionee in misconduct that is materially injurious to the Corporation. For purposes of this section, no act, or failure to act, on the Optionee's part shall be considered "willful" unless done, or omitted to be done, by the Optionee in bad faith and without reasonable belief that his action or omission was in the best interest of the Corporation. The Committee shall determine whether a cessation of Service is for Cause.
 E.  Committee shall mean a committee of two (2) or more Board members appointed by the Board to exercise one or more administrative functions under the Plan.    E.  Committee shall mean the Compensation Committee of the Board of Directors. The Committee shall consist of three or more persons each of whom is an "outside director" within the meaning of Section 162(m) of the Code and a "Non-Employee Director" within the meaning of Rule 16b-3 under the 1934 Act (or who satisfies any other criteria for administering employee benefit plans as may be specified by the Securities and Exchange Commission in order for transactions under such plan to be exempt from the provisions of Section 16(b) of the 1934 Act), and an "Independent Director" under applicable NASD rules.
G.                                     Corporate Transaction shall mean either of the following shareholder-approved transactions to which the Corporation is a party:

  (i)                                     a merger or consolidation in which securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities are transferred to a person or persons different from the persons holding those securities immediately prior to such transaction, or

  (ii)                                  the sale, transfer or other disposition of all or substantially all of the Corporation’s assets, or the complete liquidation or dissolution of the Corporation.

 G.    Corporate Transaction shall mean any of the following occurrences:

        (i)    any "person," as such term is used in Sections 13(d) and 14(d) of the 1934 Act (other than the Corporation, any trustee or other fiduciary holding securities under an employee benefit plan of the Corporation or any corporation owned, directly or indirectly, by the stockholders of the Corporation in substantially the same proportions as their ownership of stock of the Corporation), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Corporation representing 50% or more of the combined voting power of the Corporation's then outstanding securities;

        (ii)   during any period of not more than two consecutive years (not including any period prior to the adoption of the Plan), individuals who at the beginning of such period constitute the Board of Directors and any new director (other than a director designated by a person who has entered into an agreement with the Corporation to effect a transaction described in clause (i), (iii) or (iv) of this section whose election by the Board of Directors or nomination for election was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof;

        (iii)  the stockholders of the Corporation approve a merger or consolidation of the Corporation with any other corporation, other than (A) a merger or consolidation that would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidation or (B) a merger or consolidation effected to implement a recapitalization of the Corporation (or similar transaction) in which no "person" (as herein above defined) acquires more than 50% of the combined voting power of the Corporation's then outstanding securities; or

        (iv)  the stockholders of the Corporation approve a plan of complete liquidation of the Corporation or an agreement for the sale or disposition by the Corporation of all or substantially all of the Corporation's assets

I.  Disability shall mean the inability of Optionee to engage in the performance of his duties as an Employee for a period exceeding three (3) months by reason of any medically determinable physical or mental impairment and shall be determined by the Plan Administrator on the basis of such medical evidence as the Plan Administrator deems warranted under the circumstancesI. Disability shall mean: (i) any physical or mental condition that would qualify the Optionee for a disability benefit under the long-term disability plan maintained by the Corporation or a Subsidiary of the Corporation and applicable to such Optionee; or (ii) when used in connection with the exercise of an incentive stock option (within the meaning of Section 422 of the Code) following cessation of Service, disability within the meaning of Section 22(e)(3) of the Code.
O.  Fair Market Value per share of Common Stock on any relevant date shall be determined in accordance with the following provisions:

(i)   If the Common Stock is at the time traded on the NASDAQ National Market, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question, as the price is reported by the National Association of Securities Dealers on the NASDAQ National Market or any successor system.  If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.  

(ii)    If the Common Stock is at the time listed on any Stock Exchange, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question on the Stock Exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange.  If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.  

(iii)  If the Common Stock is at the time neither listed on any Stock Exchange nor traded on the NASDAQ National Market, then the Fair Market Value shall be determined by the Plan Administrator after taking into account such factors as the Plan Administrator shall deem appropriate.

[No equivalent language -- the Fair Market Value definition is gone]
Z. Stock Exchange shall mean NASDAQ.[No equivalent language]


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