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More on the Bankruptcy Hearing - Who Exactly Is The Proposed Buyer? - Updated
Thursday, June 18 2009 @ 06:34 AM EDT

There are some media reports on the SCO cliff hanger bankruptcy hearing on Monday. The more information that comes in, the less clear I am on exactly who the actual proposed buyer is. I'll show you why.

In ars technica's SCO signs deal to avoid liquidation right before hearing, they mention Gulf Capital Partners:
The dying SCO Group narrowly evaded conversion to Chapter 7 bankruptcy this week by signing a last-minute deal to sell its UNIX assets to Gulf Capital Partners. The sale has earned SCO another delay in the bankruptcy proceedings and could potentially enable the company to continue pursuing its controversial litigation campaign.

SCO has not yet issued a public statement about the sale, and the specific details have not yet been disclosed. It appears as though SCO made the agreement at the very last minute in a desperate attempt to stave off liquidation so that it can continue with the process of appealing the 2007 ruling. SCO still hasn't presented any evidence to substantiate its claims and it seems extremely unlikely that the delay will help the company.

I'm not sure this is the correct name, though. A pro se filing [PDF] the day of the hearing by Al Petrofsky challenges that name and states that it's actually Gulf Capital Advisory LLC, registered in Delaware:
2. The movant does not appear to be a legally formed entity in the state of Delaware nor any other jurisdiction.

3. This is particularly concerning because it is the second time in this case that papers have been filed alleging the existence of a non-existent LLC apparently associated with Stephen L. Norris. See the "Memorandum of Understanding" (Exhibit A to Docket No. 346, filed February 14, 2008), signed by Stephen L. Norris as alleged chairman of the non-existent "Stephen L. Norris Capital Partners, LLC, a Delaware limited liability company" and alleging that that that entity already "ha[d] a financing commitment sufficient to provide the Equity Financing and the Debt Financing [$35 million]" (Id. at p. 3).

4. Earlier today, when I first spoke to the purported movant's local counsel, Kelly Conlon, she refused to identify her alleged client's state of legal formation, flatly refused even to confirm or deny that the alleged client legally existed in any jurisdiction, and stated that no further information would be provided to me and that any concerns I had should be addressed to the Court.

5. Ms. Conlon has since informed me that there was "a typo" in the motions and that she represents Gulf Capital Advisory, LLC, a Delaware LLC.

This filing was ignored, so far, at least from the hearing notes we received from our eyewitnesses, and the upshot will probably just be corrections, but those who have a copy of the agreement might want to look to see how it was signed. According to our update 5, Stephen Norris signed the agreement, but now the question is, for which entity? And when was the entity formed? Recently? Is that the sound of wings I hear?

It makes one wonder who exactly is the final buyer, particularly because the Berger Singerman lawyer who worked out the deal, Mr. Kaplan, reportedly testified at the hearing that he wasn't clear what Mr. Norris' role was. According to update 5, he testified like this:

The principal businessman is in London. The principal is in London. I am not certain of Norris' role. I have not been aware of Mr. Norris.
So, the only possible response to that is, what's up with that? He is referring to Eric LeBlan, presumably, or at least according to our eyewitnesses' reports, as the UK businessman. But you might want to mentally put a marker here, to make sure to watch this issue as more information arrives. At some point SCO will have to file with the SEC presumably. And as you know, Darl McBride testified under oath in a prior court hearing that he always tells the SEC the truth.

Maureen O'Gara nevertheless writes [http://linux.sys-con.com/node/1005328]:

Stephen Norris, one of the original founders of the chi-chi Carlyle Group, and his current equity arm Gulf Capital Partners LLC – the money is reportedly coming from Saudi Arabia unless the White House stops it – are offering $2.4 million for what remains of SCO’s Unix business plus its mobility technology....

If SCO winds up with the Unix copyrights after all it only gets to run with them for 10 years then they revert to Gulf Capital Partners.

If she is correct in any respect, then it sounds like this is just the old deal reheated.

Finally, in SCO Does It, Quite Frankly, As Usual, by Justin Ryan, Linux Journal, the article mentions a basis for an appeal:

On the subject of appeals, were we among the creditors, we would appeal the court's ruling on admitting the sale agreement into evidence to the District Court, contending that the bankruptcy judge erred in ignoring Fed. R. Bankr. P. 9014(e) and Local Rule 9006-1(c)(i), and to a lesser extent, Local Rule 9013-3.
The article mentions the movants agreeing to the delay, based probably on our first, earliest eyewitness reports, but if you read updates 4 and 5 to our eyewitness reports article, I think it's clear now that they did not. It was a judge's ruling, and then after that they agreed on the dates for a hearing, once he reached his decision that there had to be a hearing. That's the advantage of having many eyewitness at a hearing, actually. They each notice different things. The reason it matters is that because no one agreed to the delay, they can appeal, if they so chose. I have no clue whether they will or not, but they can, as I understand it.

Update: Here's Fed. R. Bankr. P. 9014(e):

The court shall provide procedures that enable parties to ascertain at a reasonable time before any scheduled hearing whether the hearing will be an evidentiary hearing at which witnesses may testify.
And here's Delaware's Local Rule 9006-1(c)(i) [PDF]:
Service of Motion Papers. Unless the Fed. R. Bankr. P. or these Local Rules state otherwise, all motion papers shall be filed and served in accordance with Local Rule 2002-1(b) at least fifteen (15) days (eighteen (18) days if service is by mail; sixteen (16) days if service is by overnight delivery) prior to the hearing date.
Meaning as opposed to just showing up in court with your motion and giving IBM and Novell and the US Trustee no notice.

And Delaware Bankruptcy Court Local Rule 9013-3, in that same Local Rules PDF, says:

Service Copies. Unless otherwise ordered by the Court, only one (1) copy of pleadings, motions and other papers need be served upon another party.
Here, there was one copy to start with for IBM, Novell, and the US Trustee to share. Heh heh. And notice it says copy, not original. That rule presumes, of course, that there is actual service, days in advance of a hearing, so the party can make as many copies as it needs, not that there will be a court ambush.


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