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Novell's Amended Counterclaims - A Chart Showing What's New - Updated
Friday, September 22 2006 @ 06:29 AM EDT

Here are the new Novell Amended Counterclaims in a comparative chart, so you can see at a glance what has changed from Novell's previous counterclaims. First, though, there is so much to explain.

There are two new counterclaims and some refinements to some of the old ones, based, I gather, on what Novell has learned in discovery. And Novell has added a couple of California laws, California Civil Code 2223 and 2224 to use to compel SCO to give Novell the money it says belongs to it, as well as a claim based on the APA's Amendment 2. More on that in a bit.

Novell is asking for two things that could really make a difference, a writ of replevin and for punitive damages in connection with their allegation of conversion, their new 8th counterclaim. Number 7 is the other new counterclaim, breach of fiduciary duty. What does all that mean?

Conversion is a tort, kind of a legal way to say stealing, where you say someone has taken property that belongs to you and put it in his own pocket. 'Lectric Law Library's definition begins like this: "The unlawful turning or applying the personal goods of another to the use of the taker, or of some other person than the owner; or the unlawful destroying or altering their nature." The 8th counterclaim, the conversion claim, reads like this, in part:

SCO converted Novell's property by intentionally and maliciously failing to remit any monies flowing from the 2003 Sun and Microsoft Agreements to Novell and other SVRX Licenses as defined by the APA.

Ouch. Them's fightin' words.

What's a writ of replevin? First, what's replevin? If you look it up in the Law.com dictionary, it defines it like this:

replevin
n. under common law, the right to bring a lawsuit for recovery of goods improperly taken by another.

And a writ is defined by my "Law Dictionary," by Steven Gifis like this:

Writ, a mandatory precept issued by the authority and in the name of the sovereign or the state for the purpose of compelling a person to do something therein mentioned. It is issued by a court or other competent tribunal and is directed to the sheriff or other officer authorized to execute it. In every case the writ itself contains the directions as to what is required to be done.

And the same dictionary defines replevin a bit more exactly:

Replevin, an action taken for the recovery of property taken, rather than for the value of that property; a possessory remedy; "a legal form of action ordinarily employed only to recover possession or the value of specific personal property unlawfully withheld from the plaintiff plus damages for its detention.... It is primarily a possessory action in which the issues ordinarily are limited to the plaintiff's title or right to possession of the goods."

If, for example, you break into my house and steal my piano my grandmother gave me, and you won't give it back and in fact you are threatening to sell it to somebody in Paris, before you can ship it out of the country, I can ask the court to issue a writ of replevin, which the sheriff will then execute by going to your house and taking the piano and giving it back to me. Of course, I have to show the judge proof that it's my piano and maybe post a bond. Note that this is relief you ask for *before* judgment, before any trial, in an emergency situation when things are such that maybe a trial won't do you a bit of good if you wait that long. Once that piano disappears, what will the court be able to do for me? Money won't make me whole. I want my piano. That particular one. I learned to play piano on that special piano, and there are lots of happy memories. So no other piano will do.

Here are the Utah rules on when you can ask the court to issue a writ of replevin. It's what you ask for when you think the other side is about to fly to Rio with your stuff, or he's selling your things off and spending all the money like a drunken sailor and there won't be anything left by the trial date, or you have reason to believe the property is about to decline in value and you need the court to protect you. You have to prove you are likely to prevail on the merits, naturally.

In this case Novell is asking for the royalty money it says SCO ought to have turned over long ago. Novell wants it now, before it is all gone, which it soon will be at the current rate. If Novell waits for the trial date, that royalty money could be 100% gone. SCO itself could be long gone. If the judge grants this request, SCO won't have any money left long before the trial date, I don't think. But even if there were to be another drop from the heavens by the PIPE Fairy, the writ of replevin request has value, because it forces SCO to put all its proof regarding the APA and its reasons for not turning over that money on the table right now, no excuses, or it's going to risk losing all of it. Maybe the Novell lawyers have been observing SCO's tactics in the IBM litigation and would prefer a shorter wait time to get to see SCO's claims and proof thereof.

One of the changes, as I mentioned, in Novell's Amended Counterclaims relates to the APA, the Asset Purchase Agreement, between Novell and Santa Cruz. Novell has added claims associated with Amendment 2. That is irony indeed. Do you remember the story? Amendment 2 is the one SCO miraculously found in an old filing cabinet back in June of 2003, and that it claimed had brought Novell to its knees, and here is Novell using it against SCO. The Novell lawyers are true ninjas. Here's the new claim:

122. Under § B of Amendment No. 2 to the APA, SCO is obligated to consult Novell and obtain Novell's approval before concluding any potential buy-out transaction with an SVRX licensee. SCO did not perform its corresponding duties under § B of Amendment No. 2 and substantially and materially breached § 4.16(b) by entering into the 2003 Agreement with Sun without consulting Novell or securing Novell's prior approval.

I love that touch. How funny it is to review that old, old history. In the linked article about the discovered document, written by Stephen Shankland, note what one "expert" quoted, a lawyer, had to say about Amendment 2:

At least one independent observer agreed that the amendment appears to give SCO copyrights. "They do have the copyrights," said John Ferrell, an intellectual property attorney with Carr and Ferrell, after reviewing the contract amendment.

Ah, yes. Those "independent" observers. How, one wonders, did he get access to Amendment 2 lickety split like that, just in time to be quoted by Shankland? My, it's funny to read what the experts said then. How wrong they all were. It was terrifying at the time, but it's a hoot now. As you know, nobody else but SCO now seems to agree with his strongly asserted conclusion, including Judge Kimball. I wrote about SCO finding Amendment 2 also, and my article quoted Laura Didio, who was suitably impressed by it as well, naturally.

I noticed something rereading that article. I wrote, "With friends like IBM, who needs enemies?" I point that out because sometimes SCO and their gang of shills claim I am biased toward IBM. But as you can see from what I wrote in that article, Groklaw has always been simply pro Linux and the GPL. In the beginning, I had no idea who was in the right in the contract dispute. I forgot I wrote that myself, but it is proof that what I've always told you is true. While I always knew, from day one, that the GPL stood firmly in SCO's way and I had confidence that the Linux development process was designed to respect other people's rights in their code, I didn't know in the early days who should prevail in the contract claims. That was a process.

I gather Novell has now seen the Microsoft and Sun license agreements, and now that it knows that the Sun agreement constituted a buyout, it points to the language in Amendment 2 that says SCO had to tell them and it had to be a three-way deal, like IBM's way when it got the irrevocable language. Here's the language Novell is relying on in Amendment 2:

Except as provided in Section C below, and notwithstanding the provisions of Article 4.16, Sections (b) and (c) of the Agreement, any potential transaction with an SVRX licensee which concerns a buy-out of any such licensee's royalty obligations shall be managed as follows:

1. Should either party become aware of any such potential transaction, it will immediately notify the other in writing.

2. Any meetings and/or negotiations with the licensee will be attended by both parties, unless agreed otherwise. Novell's participation will be by personnel who are engaged in corporate business development.

3. Any written proposal to be presented to the licensee, including drafts and final versions of any proposed amendments to the SVRX licenses, will be consented to by both parties prior to its delivery to the licensee, unless agreed otherwise.

4. Prior to either parties' unilateral determination as to the suitability of any potential buy-out transaction, the parties will meet face to face and analyze the potential merits and disadvantages of the transaction. No such transaction will be concluded unless the execution copy of the amendment is consented to in writing by both parties, and either party will have the unilateral right to withhold its consent should it judge, for any reason whatsoever, the transaction to be contrary to its economic interests and/or its business plans and strategy.

5. This Amendment does not give Novell the right to increase any SVRX licensee's rights to SVRX source code, nor does it give Novell the right to grant new SVRX source code licenses. In addition, Novell may not prevent SCO from exercising its rights with respect to SVRX source code in accordance with the Agreement.

6. The parties agree that no member of Novell's sales force will receive a bonus, commission, quota attainment credit, or other type of sales incentive as a result of the buy-out of an SVRX license.

Section C of Amendment 2 is interesting too. I never noticed this before, but Novell has certain rights if SCO fails to "actively and agressively market SCO's UNIX platforms":

C. Novell may execute a buy-out with a licensee without any approval or involvement of SCO, and will no longer be bound by any of the requirements stated in Section B. above, if: (i) SCO ceases to actively and aggressively market SCO's UNIX platforms; or (ii) upon a change of control of SCO as stated in schedule 6.3(g) of the Agreement.

Well, well. No wonder they have insisted on keeping their UNIX products on life support, despite a lack of market enthusiasm and despite pressure from Baystar.

And in the 7th counterclaim, the other new one, Novell alleges that SCO breached its fiduciary duty to "diligently collect, administer, and deliver to Novell all SVRX Royalties."

Fiduciary duty means what one owes another legally, due to the relationship, whereby one takes on the responsibility to act primarily for the benefit of the other. For example, if you park your car in a lot, the attendant and the owner of the lot have a fiduciary duty to take reasonable care of your car so it isn't damaged or lost. If it rolls off tier 7 and is totaled because the guy decided to drag race with it, or failed to turn off the engine and put on the emergency brake when he parked the car, because he was in a hurry to get off work, you can sue. A lawyer has a fiduciary duty to a client. A trustee has a fiduciary duty to the trust's beneficiaries. That's why the trustee can't just run off with the funds or use them for his own fun or benefit. In this case, SCO's fiduciary duty is "to diligently collect, administer, and deliver to Novell all SVRX Royalties." Novell carefully states that this fiduciary duty was taken on by Santa Cruz. And it says over and over that SCO has failed to fulfill its duty.

You have to undertake a fiduciary duty; it doesn't just happen to you. If you don't wish to look out for the beneficiaries of that duty, then you shouldn't accept the role by entering a contract or agreeing to a fiduciary role. If you do accept, it comes with the fiduciary responsibility.

Note that the motion to file the amended counterclaims was by stipulation. The fact that SCO didn't oppose Novell filing the motion to amend doesn't mean they agreed to the content or admit to anything, by the way, only to Novell's opportunity to amend. Under the rules, a party can always ask to amend and it's liberally granted. We saw that in the SCO v. IBM litigation. What *haven't* we seen in that case, now that I think of it? We saw SCO seek to amend [PDF] its original complaint in July of 2003, and IBM -- while asking the court to dump the entire nonsense overboard then and there -- in the alternative said if the court allowed the case to go forward, it didn't oppose [PDF] and so the court let SCO amend [PDF] and SCO filed its Amended Complaint [PDF]. Of course IBM opposed the contents plenty, as we've observed ever since, but not SCO's request to amend.

In February of 2004, SCO amended again, again with no opposition from IBM, and so the court gave permission. But later, in October of 2004, when SCO sought to amend a third time, IBM did oppose, and SCO was not permitted to amend, after many motions and a serious dogfight.

To review, here is the rule, Rule 15(a) of the Federal Rules of Civil Procedure, on amending a complaint:

Rule 15. Amended and Supplemental Pleadings

(a) Amendments.

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders."

Obviously at this point, because SCO has responded to Novell's counterclaims, Novell needs court permission to amend, or SCO's, which it got, but as you see in the rule, "leave shall be freely given when justice so requires," so it's very likely that Novell would be granted permission to amend, just as SCO was a couple of times in the IBM litigation, and so why oppose?

The thing is, lawyers are normally realists. And if the other side is sure to be granted something, there is no point in fighting it, particularly when your firm has been paid and there's no more money coming your way from extended motion practice. That's not cynicism; just that lawyers have to pick their battles usually, because unless they represent a client like Microsoft with endless buckets of money, you do have to decide what is worth fighting, and it's very much a practical decision.

Now, about the chart. First, I separated the two new counterclaims, because the numbers don't match, and it was confusing. After that, you have the comparative chart showing all other changes to the older counterclaims. Because there are additional claims, as well as refinements, what Novell is asking the court to do for it has altered as well, so in the chart I've included the Prayer for Relief paragraphs too, so you can compare them as well.

Here are the new counterclaims:

SEVENTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty)

137. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.

138. The APA creates an agency relationship between Novell and SCO whereby Santa Cruz assumed fiduciary duties to diligently collect, administer, and deliver to Novell all SVRX Royalties, which was defined to include "all royalties, fees and other amounts due under all SVRX Licenses." As Novell's agent, SCO has a fiduciary duty to Novell. This fiduciary duty includes a duty to "to collect and pass through to [Novell] one hundred percent (100%) of the SVRX Royalties," to "administer the collection of all royalties, fees and other amounts due under all SVRX Licenses," to "diligently seek to collect all such royalties, funds and other amounts when due" and to promptly remit to Novell all SVRX Royalties within a time period prescribed by the APA. The fiduciary duty of loyalty flowing from the agency relationship also prohibits SCO from profiting at Novell's expense.

139. From all times after execution of the APA to present, including during 2003, SCO has owed Novell fiduciary duties as a result of the APA's agency provisions.

140. SCO breached its fiduciary duties to Novell by failing to account for and pass through all royalties, fees and other amounts received from the 2003 Sun and Microsoft SVRX Licenses, SCO's Intellectual Property Licenses, and any additional past or future SVRX Licenses as defined in the APA. SCO also did not report to Novell on the royalties, fees and other amounts due under those agreements, as required by the APA.

141. SCO further breached its fiduciary duties by failing to faithfully comply with the audit provisions of the APA. SCO failed to keep Novell fully informed as to all matters pertinent to Novell's interest in the SVRX Royalties. Instead, SCO hid the terms of the 2003 Sun and Microsoft SVRX Licenses and other SVRX Licenses from Novell for as long as it possibly could, in derogation of its fiduciary duties as Novell's administrative agent.

142. SCO's breaches of fiduciary duty have caused Novell damage in an amount to be later proven. In addition, these breaches have caused Novell special damages, including, inter alia, the costs associated with making repeated requests for information necessary to confirm SCO's compliance with its contractual obligations to administer SVRX licensing program, conducting further reviews of the limited information provided by SCO, attempting to estimate royalties owing based upon incomplete information provided, and initiating and maintaining suit against SCO for its breaches.

143. Novell also seeks an order from this Court imposing a constructive trust on revenues SCO unjustly received by failing to perform its administrative auditing and remittance obligations under the APA.

EIGHTH CLAIM FOR RELIEF
(Conversion)

144. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.

145. Novell holds "all right, title and interest" to the SVRX Royalties, as set forth in §§ 1.2 and 4.16 of the APA.

146. In 2003, SCO entered into SVRX Licenses with Sun Microsystems and Microsoft. SCO received millions of dollars worth of SVRX Royalties, as defined by the APA, from these licenses. SCO has also entered into other SVRX Licenses as defined in the APA, including but not limited to SCO's Intellectual Property Licenses.

147. SCO converted Novell's property by intentionally and maliciously failing to remit any monies flowing from the 2003 Sun and Microsoft Agreements to Novell and other SVRX Licenses as defined by the APA. This wrongful exercise of dominion over the Sun and Microsoft SVRX Royalties, as well as the royalties, fees and other amounts arising from these other SVRX Licenses, resulted in damage to Novell in an amount to be later proven.

148. SCO's conversion also has caused Novell special damages including, inter alia, the costs associated with making repeated requests for information necessary to confirm SCO's compliance with its contractual obligations to administer SVRX licensing program, attempting to estimate royalties owing based upon incomplete information provided, and initiating and maintaining suit against SCO for its breaches.

149. Novell seeks an order from this Court imposing a constructive trust on the SVRX Royalties wrongfully withheld by SCO. In the alternative, Novell seeks a writ of replevin, ordering the immediate return of the wrongfully withheld royalties.

150. SCO's wrongful conversion was done maliciously, with the intent of harming Novell for its own financial gain. Accordingly, Novell seeks an award of punitive damages against SCO in an amount to be proven at trial.

And now, here's the comparative chart, showing all the other changes, with color coding, blue for what was dropped or altered from the old, and red to show the new language. Note that the two links in the headers are to PDFs of the filings with the court. I guess it would have been quicker to just tell you what didn't change. That would be the first counterclaim, slander of title. It has stayed exactly the same. But every other counterclaim is now altered or brand new.

Update: For more on what it all means, you don't want to miss Lamlaw's entry for September 22, 2006:

And you have to keep in mind that the writ of replevin is going to be for the $30 million or so not the measly $9.5 million SCO claims to possess.

It could turn into a fire sale of sorts. Or, bankruptcy will be filed and a trustee in bankruptcy is going to take over the company. I have discussed some of the possible scenarios for bankruptcy before. But, the nutshell explanation is that someone else is going to be calling the shots. Not SCO management. And not the current SCO lawyers either. Someone else....

And you can bet the Novell lawyers right now know that. The Novell lawyers could have delayed this eventual bankruptcy simply by not asking for the writ of replevin. ....

Novell has some $30 million in receivables from SCO to bid. And a quick check with the stock price for SCOX at $2 or so suggests a market cap of $40 million plus or minus. Of course you can not buy out the company with bogus receivables. But you can get a writ of replevin with them. And that could and most likely will cause a sale of sorts.

Stay tuned. Things are likely to happen sooner rather than later.

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

Novell's prior counterclaims Novell's Amended Counterclaims

FIRST CLAIM FOR RELIEF
(Slander of Title)

FIRST CLAIM FOR RELIEF
(Slander of Title)

94. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.100. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
95. SCO made its public statements claiming ownership of the UNIX Copyrights, and improperly registered its claim to UNIX Copyrights, with knowledge that title to these copyrights remains with Novell.101. SCO made its public statements claiming ownership of the UNIX Copyrights, and improperly registered its claim to UNIX Copyrights, with knowledge that title to these copyrights remains with Novell.
96. SCO made such statements maliciously, in bad faith, and with intentional disregard for the truth. 102. SCO made such statements maliciously, in bad faith, and with intentional disregard for the truth.
97. SCO made such statements with the intent to cause customers and potential customers of Novell not to do business with Novell, to slander and impugn the ownership rights of Novell in UNIX and UnixWare, and to attempt, in bad faith, to block Novell's ability to exercise its copyrights therein.103. SCO made such statements with the intent to cause customers and potential customers of Novell not to do business with Novell, to slander and impugn the ownership rights of Novell in UNIX and UnixWare, and to attempt, in bad faith, to block Novell's ability to exercise its copyrights therein.
98. SCO's slander of Novell's title has resulted in special damages including, inter alia, Novell's costs and fees in preparing and filing copyright registrations and declarations correcting SCO's erroneous registrations claiming ownership of Novell's intellectual property and in prosecuting this action.104. SCO's slander of Novell's title has resulted in special damages including, inter alia, Novell's costs and fees in preparing and filing copyright registrations and declarations correcting SCO's erroneous registrations claiming ownership of Novell's intellectual property and in prosecuting this action.

SECOND CLAIM FOR RELIEF
(Breach of Contract: §§ 1.2(b) and 1.2(f) of the Asset Purchase Agreement)

SECOND CLAIM FOR RELIEF
(Breach of Contract: §§ 1.2(b) and 1.2(f) of the Asset Purchase Agreement)

99. Novell incorporates by reference all prior paragraphs as if they were set forth here in full. 105. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
100. Pursuant to its audit rights under the APA, Novell requested certain information from SCO to verify SCO's compliance with the APA, including:

a. Any amendments and modifications to SVRX licenses, and in particular the amendments to the Sun and Microsoft SVRX licenses, including a copy of these amendments and a detailed explanation on SCO's position if SCO contends that either of the two exceptions to the prohibition on unilateral amendments by SCO was applicable;

b. Any buy-out or potential buy-out of SVRX licenses, and in particular any information concerning any buy-out of Sun and Microsoft's royalty obligations under their SVRX licenses;

c. Any new SVRX licenses, and in particular SCO's new SVRX agreements with Sun and Microsoft and SCO's Intellectual Property Licenses with Linux end users or UNIX vendors, including copies of these agreements and a detailed explanation of SCO's position if SCO contends that the exception to the prohibition on new SVRX Licenses by SCO was applicable; and

d. Any SVRX to UnixWare Conversions, including documentation for any allegedly valid conversions, a detailed explanation of how the alleged conversion complies with the APA and a detailed explanation of SCO's position if SCO contends that any of the exceptions to the prohibition on conversion by SCO were triggered.

106. Pursuant to its audit rights under the APA, Novell requested certain information from SCO to verify SCO's compliance with the APA, including:

a. Any amendments and modifications to SVRX licenses, and in particular the amendments to the Sun and Microsoft SVRX licenses, including a copy of these amendments and a detailed explanation of SCO's position if SCO contends that either of the two exceptions to the prohibition on unilateral amendments by SCO was applicable;

b. Any buy-out or potential buy-out of SVRX licenses, and in particular any information concerning any buy-out of Sun and Microsoft's royalty obligations under their SVRX licenses;

c. Any new SVRX licenses, and in particular SCO's new SVRX agreements with Sun and Microsoft and SCO's Intellectual Property Licenses with Linux end users or UNIX vendors, including copies of these agreements and a detailed explanation of SCO's position if SCO contends that the exception to the prohibition on new SVRX Licenses by SCO was applicable; and

d. Any SVRX to UnixWare Conversions, including documentation for any allegedly valid conversions, a detailed explanation of how the alleged conversion complies with the APA and a detailed explanation of SCO's position if SCO contends that any of the exceptions to the prohibition on conversion by SCO were triggered.

101. Under the APA, SCO was obligated to provide this information. SCO substantially and materially breached §§ 1.2(b) and 1.2(f) of the APA by refusing to do so.107. Under the APA, SCO was obligated to provide this information. SCO substantially and materially breached §§ 1.2(b) and 1.2(f) of the APA by refusing to do so during the course of Novell's audit of the SVRX licensing program. Novell was forced to initiate suit against SCO to obtain this previously requested information.
102. On information and belief, SCO's breaches of §§ 1.2(b) and 1.2(f) of the APA have caused Novell damage in an amount to be later proven. In addition, these breaches have caused Novell special damages, including, inter alia, the costs associated with making repeated requests for information necessary to confirm SCO's compliance with its contractual obligations to administer SVRX licensing program, conducting further reviews of the limited information provided by SCO, and attempting to estimate royalties owing based upon incomplete information provided. 108. On information and belief, SCO's breaches of §§ 1.2(b) and 1.2(f) of the APA have caused Novell damage in an amount to be later proven. In addition, these breaches have caused Novell special damages, including, inter alia, the costs associated with making repeated requests for information necessary to confirm SCO's compliance with its contractual obligations to administer SVRX licensing program, conducting further reviews of the limited information provided by SCO, attempting to estimate royalties owing based upon incomplete information provided, and initiating and maintaining suit against SCO due to SCO's breaches.
103. The legal remedies available to Novell for future failures by SCO to comply with its audit obligations under §§ 1.2(b) and 1.2(f) of the APA may be inadequate. Therefore, Novell seeks an order from this Court compelling SCO's specific performance of its aforementioned audit obligations under §§ 1.2(b) and 1.2(f).109. The legal remedies available to Novell for future failures by SCO to comply with its audit obligations under §§1.2(b) and 1.2(f) of the APA may be inadequate. Therefore, Novell seeks an order from this Court compelling SCO's specific performance of its aforementioned audit obligations under §§1.2(b) and 1.2(f).

THIRD CLAIM FOR RELIEF
(Breach of Contract: §§ 1.2(b) & 4.16(a) of the Asset Purchase Agreement)

THIRD CLAIM FOR RELIEF
(Breach of Contract: §§ 1.2(b) & 4.16(a) of the Asset Purchase Agreement)

104. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.110. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
111. SCO has substantially and materially breached §§ 1.2(b) and 4.16(a) of the APA by failing to remit all royalties owed to Novell, including any royalties SCO obtained from its new SVRX Licenses with Sun or Microsoft or from its Intellectual Property Licenses with Linux end users or UNIX vendors.105. SCO has substantially and materially breached §§ 1.2(b) and 4.16(a) of the APA by failing to remit all royalties owed to Novell, including any royalties SCO obtained from its new SVRX Licenses with Sun or Microsoft or from its Intellectual Property Licenses with Linux end users or UNIX vendors.
106. On information and belief, SCO's breaches of §§ 1.2(b) & 4.16(a) of the APA have caused Novell damage in an amount to be later proven. These breaches have caused Novell special damages, including, inter alia, the costs associated with attempting to ascertain from SCO the royalty amounts due to Novell, and the unpaid royalty amounts. 112. On information and belief, SCO's breaches of §§ 1.2(b) & 4.16(a) of the APA have caused Novell damage in an amount to be later proven. These breaches have caused Novell special damages, including, inter alia, the costs associated with attempting to ascertain from SCO the royalty amounts due to Novell and the unpaid royalty amounts and initiating and maintaining suit against SCO due to SCO's breaches.
107. The legal remedies available to Novell for future failures by SCO to comply with its royalty obligations under §§ 1.2(b) & 4.16(a) of the APA may be inadequate. Therefore, Novell seeks an order from this Court compelling SCO's specific performance of its remittance obligations under §§ 1.2(b) & 4.16(a) of the APA. 113. The legal remedies available to Novell for future failures by SCO to comply with its royalty obligations under §§ 1.2(b) & 4.16(a) of the APA may be inadequate. Therefore, Novell seeks an order from this Court compelling SCO's specific performance of its remittance obligations under §§ 1.2(b) & 4.16(a) of the APA.
108. In addition, Novell seeks an order from the Court imposing a constructive trust on revenues received by SCO from its new SVRX Licenses with Sun and Microsoft and from its Intellectual Property Licenses with Linux end users and UNIX vendors. Creation of this trust is necessary to protect Novell from SCO's wrongful retention of monies owing Novell due to SCO's failure to perform its remittance obligations under §§ 1.2(b) & 4.16(a) of the APA. As set forth above, Novell owns "all right, title and interest" to these royalties, less SCO's 5% administrative fee. 114. In addition, Novell seeks an order from this Court imposing a constructive trust on revenues received by SCO from its new SVRX Licenses with Sun and Microsoft, its Intellectual Property Licenses with Linux end users and UNIX vendors, and any other new or amended SVRX Licenses, as defined by the APA, executed by SCO without Novell's approval. Creation of this trust is necessary to protect Novell from SCO's wrongful retention of monies owing Novell due to SCO's failure to perform its remittance obligations under §§ 1.2(b) & 4.16(a) of the APA. As set forth above, Novell owns "all right, title and interest" to these royalties, less SCO's 5% administrative fee.
109. This trust should be imposed for the additional reason that SCO is quickly dissipating its assets. On information and belief, SCO's revenues are declining, its operational losses are increasing and its cash is dwindling quickly. SCO expects to have only $11 million in cash remaining for its business operations as of October 31, 2005, just a fraction of the revenue it purportedly generated as a result of the Sun and Microsoft licenses. 115. This trust should be imposed for the additional reason that SCO is quickly dissipating its assets. On information and belief, SCO's revenues are declining, its operational losses are increasing and its cash is dwindling quickly. As of April 30, 2006, SCO had just $9,524,000 in cash and cash equivalents, just a fraction of the revenue it purportedly generated as a result of the Sun and Microsoft licenses.
110. Novell also seeks an order from the Court attaching SCO's assets pending adjudication of this claim because SCO is quickly dissipating its assets. 116. Novell also seeks an order from the Court attaching SCO's assets pending adjudication of this claim because SCO is quickly dissipating its assets.

FOURTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Duties under § 4.16(b) of the Asset Purchase Agreement)

FOURTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Duties under § 4.16(b) of the Asset Purchase Agreement, § B of Amendment No. 2)

111. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.117. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
112. Under § 4.16(b) of the APA, Novell has the right, at its sole discretion, to direct SCO to waive any rights under any SVRX Licenses. In the event that SCO fails to take any such action at Novell's direction, § 4.16(b) gives Novell the right to take any action on SCO's own behalf. SCO refused to perform its corresponding duties under § 4.16(b) and substantially and materially breached § 4.16(b) by:
a. Purporting to cancel or terminate SVRX licenses, including the IBM and Sequent SVRX licenses, and then refusing to waive these purported rights as directed by Novell; and

b. Refusing to recognize actions taken by Novell on SCO's behalf pursuant to § 4.16(b), including Novell's waiver of SCO's purported claims against IBM and Sequent.

118. Under § 4.16(b) of the APA, Novell has the right, at its sole discretion, to direct SCO to waive any rights under any SVRX Licenses. In the event that SCO fails to take any such action at Novell's direction, § 4.16(b) gives Novell the right to take any action on SCO's own behalf. SCO refused to perform its corresponding duties under § 4.16(b) and substantially and materially breached § 4.16(b) by:
a. Purporting to cancel or terminate SVRX licenses, including the IBM and Sequent SVRX licenses, and then refusing to waive these purported rights as directed by Novell; and

b. Refusing to recognize actions taken by Novell on SCO's behalf pursuant to § 4.16(b), including Novell's waiver of SCO's purported claims against IBM and Sequent.

113. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:
a. Under § 4.16(b) of the APA, Novell is entitled, at its sole discretion, to direct SCO to waive its purported claims against IBM, Sequent and other SVRX licensees;

b. Under § 4.16(b) of the APA, Novell is entitled to waive on SCO's behalf SCO's purported claims against IBM, Sequent and other SVRX licensees, when SCO refuses to act as directed by Novell; and

c. SCO is obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent.

119. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:
a. Under § 4.16(b) of the APA, Novell is entitled, at its sole discretion, to direct SCO to waive its purported claims against IBM, Sequent and other SVRX licensees; and

b. Under § 4.16(b) of the APA, Novell is entitled to waive on SCO's behalf SCO's purported claims against IBM, Sequent and other SVRX licensees, when SCO refuses to act as directed by Novell; and

c. SCO is obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent.

114. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX Licenses or amendments of SVRX Licenses, subject to limited exception. SCO did not perform its corresponding duties under § 4.16(b) and substantially and materially breached § 4.16(b) by:
a. Purporting to enter into new SVRX licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that either of two limited exceptions was applicable; and

b. Purporting to enter into amendments of SVRX Licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that a limited exception was applicable.

120. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX Licenses or amendments of SVRX Licenses, subject to limited exception. SCO did not perform its corresponding duties under § 4.16(b) and substantially and materially breached § 4.16(b) by:
a. Purporting to enter into new SVRX licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that either of two limited exceptions was applicable; and

b. Purporting to enter into amendments of SVRX Licenses without Novell's prior approval, including agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses, without demonstrating that a limited exception was applicable.

115. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:
a. Under § 4.16(b) of the APA, SCO was obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses; and

b. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, unless SCO can demonstrate to Novell that any exceptions to the prohibitions against new licenses and amendments by SCO are applicable.

121. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that:
a. Under § 4.16(b) of the APA, SCO was obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses; and

b. Under § 4.16(b) of the APA, SCO is obligated to seek Novell's prior approval to enter into new SVRX licenses or amendments to SVRX licenses, unless SCO can demonstrate to Novell that any exceptions to the prohibitions against new licenses and amendments by SCO are applicable.

[No equivalent.]122. Under § B of Amendment No. 2 to the APA, SCO is obligated to consult Novell and obtain Novell's approval before concluding any potential buy-out transaction with an SVRX licensee. SCO did not perform its corresponding duties under § B of Amendment No. 2 and substantially and materially breached § 4.16(b) by entering into the 2003 Agreement with Sun without consulting Novell or securing Novell's prior approval.
116. Novell pleads in the alternative for a declaration pursuant to 28 U.S.C. § 2201 that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors. 123. Novell pleads in the alternative for a declaration pursuant to 28 U.S.C. § 2201 that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors.

FIFTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Obligations Under APA's Covenant of Good Faith and Fair Dealing)

FIFTH CLAIM FOR RELIEF
(Declaratory Relief: Rights and Obligations Under APA's Covenant of Good Faith and Fair Dealing)

117. Novell incorporates by reference all prior paragraphs as if they were set forth here in full. 124. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
118. The APA incorporates a covenant of good faith and fair dealing whereby each party agrees to work with the other to fulfill the purposes of the contract.125. The APA incorporates a covenant of good faith and fair dealing whereby each party agrees to work with the other to fulfill the purposes of the contract.
119. The APA granted Novell broad audit rights to verify SCO's compliance with the APA, as well as rights to approve (subject to limited exception) new SVRX licenses and amendments to SVRX licenses. The APA also granted Novell the right to direct SCO to amend, supplement, modify or waive any rights under any SVRX license, and to act on SCO's behalf if SCO fails to take such direction.126. The APA granted Novell broad audit rights to verify SCO's compliance with the APA, as well as rights to approve (subject to limited exception) new SVRX licenses and amendments to SVRX licenses. The APA also granted Novell the right to direct SCO to amend, supplement, modify or waive any rights under any SVRX license, and to act on SCO's behalf if SCO fails to take such direction.
120. Under the APA, SCO was obligated to administer the SVRX License Program, subject to the additional duties provided in §§ 1.2(b), 1.2(f) and 4.16. 127. Under the APA, SCO was obligated to administer the SVRX License Program, subject to the additional duties provided in §§ 1.2(b), 1.2(f) and 4.16.
121. SCO failed to abide by these obligations under the APA and therefore substantially and materially breached the APA's covenant of good faith and fair dealing.128. SCO failed to abide by these obligations under the APA and therefore substantially and materially breached the APA's covenant of good faith and fair dealing.
122. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that SCO is obligated under the APA to:
a. Comply with Novell's exercise of its audit rights under §§ 1.2(b) and 1.2(f) by providing information requested concerning new SVRX licenses and amendments to SVRX licenses;

b. Seek Novell's prior approval before entering into new SVRX licenses or amendments to SVRX licenses, or otherwise demonstrate that an exception to the prohibition against new licenses or amendments by SCO is applicable;

c. Amend, supplement, modify or waive any rights under any SVRX License to the extent so directed in any manner or respect by Novell in its sole discretion; and

d. Accept actions taken by Novell on SCO's behalf when SCO fails to take such action in (c) above as directed by Novell.

129. Novell seeks a declaration pursuant to 28 U.S.C. § 2201 that SCO is obligated under the APA to:
a. Comply with Novell's exercise of its audit rights under §§ 1.2(b) and 1.2(f) by providing information requested concerning new SVRX licenses and amendments to SVRX licenses;

b. Seek Novell’s prior approval before entering into new SVRX licenses or amendments to SVRX licenses, or otherwise demonstrate that an exception to the prohibition against new licenses or amendments by SCO is applicable;

c. Amend, supplement, modify or waive any rights under any SVRX License to the extent so directed in any manner or respect by Novell in its sole discretion; and

d. Accept actions taken by Novell on SCO's behalf when SCO fails to take such action in (c) above as directed by Novell.

[No equivalent.] 130. Novell further seeks a declaration pursuant to 28 U.S.C. § 2201 that Novell is the equitable owner of the SVRX Royalties, and that SCO is obligated under the APA to remit to Novell all royalties, fees and other amounts arising out of the 2003 Sun and Microsoft licenses, SCO's Intellectual Property Licenses, and any additional past or future SVRX Licenses as defined in the APA.

SIXTH CLAIM FOR RELIEF
(Restitution/Unjust Enrichment)

SIXTH CLAIM FOR RELIEF
(Constructive Trust/Restitution/Unjust Enrichment)

123. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.131. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
[No equivalent.] 132. Novell holds "all right, title and interest," including equitable interest, to the SVRX Royalties as defined in the APA.
124. SCO has been unjustly enriched by retaining in part or in full portions of all SVRX Royalties to which Novell was entitled under the APA. 133. SCO has wrongfully retained in part or in full portions of all SVRX Royalties to which Novell was entitled under the APA.
125. In addition, SCO has been unjustly enriched by retaining a 5% administrative fee for administering the SVRX License Program but having failed to fulfill its administrative auditing duties under the APA. 134. In addition, SCO has wrongfully retained a 5% administrative fee for administering the SVRX License Program but having failed to fulfill its administrative auditing duties under the APA.
126. Novell seeks restitution of all monies constituting SCO's unjust enrichment. 135. Novell seeks restitution of all monies constituting SCO's unjust enrichment, including all monies held by SCO in constructive trust for Novell pursuant to California Civil Code §§ 2223 and 2224.
127. Novell also seeks an order from the Court imposing a constructive trust on revenues SCO unjustly received by failing to perform its administrative auditing and remittance obligations under the APA. 136. Novell seeks an order from this Court imposing a constructive trust on revenues SCO unjustly received by failing to perform its administrative auditing and remittance obligations under the APA.

SEVENTH CLAIM FOR RELIEF
(Accounting)

NINTH CLAIM FOR RELIEF
(Accounting)

128. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.151. Novell incorporates by reference all prior paragraphs as if they were set forth here in full.
129. Under the APA, Novell and SCO shared the stream of revenues from the SVRX licenses. In particular, SCO agreed to collect and pass through to Novell 100% of the SVRX royalties as defined and described in Section 4.16 hereof, while Novell agreed to pay an administrative fee of 5% of the SVRX Royalties. SCO was also responsible for making additional royalties and payments to Novell. 152. Under the agency relationship between Novell and SCO created by the APA, SCO assumes fiduciary duties to diligently collect, administer, and deliver to Novell all SVRX Royalties and to account for these royalties. In particular, SCO agreed to collect and pass through to Novell 100% of the SVRX royalties as defined and described in Section 4.16 of the APA, while Novell agreed to pay an administrative fee of 5% of the SVRX Royalties. SCO was also responsible for making additional royalties and payments to Novell.
130. Under section 1.2(b) of the APA, Novell was entitled to "periodic audits" of SCO concerning "all royalties and payments due to [Novell] . . . ." Under section 4.16(a), SCO was required to "diligently seek to collect all [SVRX] royalties . . . and [to] investigate and perform appropriate auditing and enforcement under [the SVRX] licenses." SCO was also required to provide regular audit reports to Novell regarding the SVRX royalties and the other royalties under section 1.2(f) of the APA. 153. Under section 1.2(b) of the APA, Novell was entitled to "periodic audits" of SCO concerning "all royalties and payments due to [Novell] . . . ." Under section 4.16(a), SCO was required to "diligently seek to collect all [SVRX] royalties . . . and [to] investigate and perform appropriate auditing and enforcement under [the SVRX] licenses." SCO was also required to provide regular audit reports to Novell on the SVRX royalties and the other royalties under section 1.2(f) of the APA, including a breakdown of these royalties based on facts peculiar to the knowledge of SCO acting as Novell's administrative agent.
131. Under the APA, the amounts due Novell were determined and verified on the basis of the audits required under the APA. The right to an accounting of the royalties and payments due to Novell under the SVRX licenses and other provisions of the APA was inherent in the APA. 154. Under the APA, the amounts due Novell were determined and verified on the basis of the audits required under the APA. The right to an accounting of the royalties and payments due to Novell under the SVRX licenses and other provisions of the APA was inherent in the APA.
132. SCO has failed to fulfill its duties under the audit provisions of the APA, and substantially and materially breached those provisions. 155. SCO has failed to fulfill its duties under the audit provisions of the APA, and substantially and materially breached those provisions.
133. Between the time the APA was concluded and the present, there have been hundreds of customers responsible for making royalty payments to SCO under the SVRX Licenses or under other agreements relating to royalty bearing products. SCO was obligated under the APA to receive and administer these royalty payments and share them with Novell. 156. Between the time the APA was concluded and the present, there have been hundreds of customers responsible for making royalty payments to SCO under the SVRX Licenses or under other agreements relating to royalty bearing products. SCO was obligated under the APA to receive and administer these royalty payments and share them with Novell.
134. Under the APA, royalty payments under the SVRX licenses or other agreements relating to royalty bearing products were to be paid to Novell through SCO. The amount of royalties was calculated through a specified formula. 157. Under the APA, royalty payments under the SVRX licenses or other agreements relating to royalty bearing products were to be paid to Novell through SCO. The amount of royalties was calculated through a specified formula.

135. On information and belief, SCO has entered into new and/or amendments of the SVRX licenses with Sun and Microsoft, as well as with Linux end users under SCO's Intellectual Property Licenses. SCO failed to seek approval to enter into these licenses, and explain why it was not obligated to obtain Novell's advance approval. Despite repeated requests by Novell to SCO to obtain the underlying information and documentation to verify SCO's APA compliance as part of the audit, SCO failed to report these licenses. This failure to report constitutes a substantial and material breach of the APA.

136. On information and belief, SCO has received royalties under the SVRX licenses which it consummated with Sun and Microsoft, as well as from Linux end users under SCO's Intellectual Property Licenses. SCO has not passed on to Novell the required 100% of the royalties it has received under these licenses. This failure to pay royalties also constitutes a substantial and material breach of the APA.

158. On information and belief, SCO has entered into new and/or amendments of the SVRX licenses with Sun and Microsoft, as well as with Linux end users under SCO's Intellectual Property Licenses. SCO failed to seek approval to enter into these licenses, and explain why it was not obligated to obtain Novell's advance approval. During the course of Novell's audit of SCO's compliance with the SVRX licensing program, SCO also failed to report these licenses, to provide the relevant documentation as requested by Novell, and to account for or pass through to Novell the sums SCO collected from these licenses. These failures constitute a substantial and material breach of the APA, as well as a breach of SCO's fiduciary duties.
137. Because SCO has refused to provide Novell with a copy of these licenses, Novell is unable to allege with particularity the precise payment terms of the licenses or the corresponding amounts payable to Novell under these licenses pursuant to the APA. Without an accounting, it is therefore impracticable for Novell to name a fixed sum that is owing with respect to these licenses.

138. Given the large number of customers currently responsible for making royalty payments to SCO under the SVRX licenses or under other agreements relating to royalty bearing products, the complexity of the formulas by which these royalty payments are calculated, and the fact that SCO receives directly all these royalty payments without immediate notice to Novell, it is impracticable for Novell to name a fixed sum that is owing with respect to these royalty payments without an accounting.

159. Given the large number of customers currently responsible for making royalty payments to SCO under the SVRX licenses or under other agreements relating to royalty bearing products, the complexity of the formulas by which these royalty payments are calculated, the fact that SCO receives directly all these royalty payments without immediate notice to Novell, and the fact that SCO has failed to fully account for the sums collected from these licenses as required by the APA (including, but not limited to, the SVRX licenses that SCO executed with Sun and Microsoft in 2003), it is impracticable for Novell to name a fixed sum that is owing with respect to these royalty payments without an accounting.
139. Novell therefore seeks an accounting for monies owed to Novell under the APA. 160. Novell therefore seeks an accounting for monies owed to Novell under the APA.

PRAYER FOR RELIEF

PRAYER FOR RELIEF

WHEREFORE, Novell prays for judgment as follows:

140. For actual and special damages, in an amount to be proven at trial, caused by SCO's slander of Novell's title to the UNIX Copyrights;

WHEREFORE, Novell prays for judgment as follows:

161. For actual and special damages, in an amount to be proven at trial, caused by SCO's slander of Novell's title to the UNIX Copyrights;

141. For punitive damages in an amount to be proven at trial for SCO's malicious and willful conduct in slandering Novell's title to the UNIX Copyrights as alleged herein; 162. For punitive damages in an amount to be proven at trial for SCO's malicious and willful conduct in slandering Novell's title to the UNIX Copyrights as alleged herein;
142. For preliminary and permanent injunctive relief requiring SCO to withdraw its improperly registered claims to UNIX Copyrights; 163. For preliminary and permanent injunctive relief requiring SCO to withdraw its improperly registered claims to UNIX Copyrights;
143. For actual and special damages, in an amount to be proven at trial, caused by SCO's breaches of §§ 1.2(b), 1.2(f) and 4.16 of the APA; 164. For actual and special damages, in an amount to be proven at trial, caused by SCO's breaches of §§ 1.2(b), 1.2(f) and 4.16 of the APA;
144. For specific performance of future compliance with SCO's audit obligations under §§ 1.2(b) and 1.2(f) of the APA; 165. For specific performance of future compliance with SCO's audit obligations under §§ 1.2(b) and 1.2(f) of the APA;
145. For specific performance of future compliance with SCO's royalty obligations under §§ 1.2(b) and 4.16(a) of the APA; 166. For specific performance of future compliance with SCO's royalty obligations under §§ 1.2(b) and 4.16(a) of the APA;
146. For an order imposing a constructive trust on the revenues remitted to SCO under new or amended SVRX Licenses; 167. For an order imposing a constructive trust on the revenues remitted to SCO under new or amended SVRX Licenses;
147. For an order attaching SCO's assets pending adjudication of Novell's contract claims; 168. For an order attaching SCO's assets pending adjudication of Novell's contract claims;
[No equivalent.]169. For a writ of replevin, ordering the immediate return of the royalties wrongfully withheld by SCO;
148. For declaratory relief pursuant to 28 U.S.C. § 2201 establishing Novell's rights and SCO's obligations under § 4.16(b), as well as SCO's authority to undertake certain actions under § 4.16(b); 170. For declaratory relief pursuant to 28 U.S.C. § 2201 establishing Novell's rights and SCO's obligations under § 4.16(b) and Amendment No. 2, as well as SCO's authority to undertake certain actions under § 4.16(b) and Amendment No. 2;
149. For preliminary and permanent injunctive relief enforcing Novell's contractual rights under the APA, including injunctive relief barring SCO from taking actions inconsistent with or in violation of §§ 1.2(b), 1.2(f), 4.16(a) and 4.16(b); 171. For preliminary and permanent injunctive relief enforcing Novell's contractual rights under the APA, including injunctive relief barring SCO from taking actions inconsistent with or in violation of §§ 1.2(b), 1.2(f), 4.16(a) and 4.16(b);
150. For declaratory relief pursuant to 28 U.S.C. § 2001 establishing Novell's rights and SCO's obligations under the covenant of good faith and fair dealing in the APA; 172. For declaratory relief pursuant to 28 U.S.C. § 2001 establishing Novell's rights and SCO's obligations under the covenant of good faith and fair dealing in the APA;
151. For an order of restitution of all monies constituting SCO's unjust enrichment; 173. For an order of restitution of all monies constituting SCO's unjust enrichment;
152. For an accounting of the royalties remitted to SCO under the SVRX licenses and the monies owing to Novell under the APA; 174. For an accounting of the royalties remitted to SCO under the SVRX licenses and the monies owing to Novell under the APA;
[No equivalent.]175. For punitive damages in an amount to be proven at trial for SCO's malicious and willful conduct in converting monies flowing from the 2003 Sun and Microsoft Agreements;
153. For pre-judgment interest on any monetary recovery; 176. For pre-judgment interest on any monetary recovery;
154. For Novell's reasonable expenses and costs incurred, including without limitation attorneys' fees, in defending against the Second Amended Complaint; and 177. For Novell's reasonable expenses and costs incurred, including without limitation attorneys' fees, in defending against SCO's Second Amended Complaint; and
155. For such other and further relief as the Court deems just and proper. 178. For such other and further relief as the Court deems just and proper.


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