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IBM Subpoenas Ernst & Young and Arthur Andersen
Wednesday, November 09 2005 @ 07:05 PM EST

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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