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SCO's motion to sell the software assets approved by Del. bankruptcy judge - Updated 4Xs - transcript
Monday, August 23 2010 @ 05:49 PM EDT

It will not surprise you to learn that the bankruptcy court has approved SCO's request to auction off "substantially all of the debtors' software business assets" free from liens, claims and encumbrances, as well as certain executory contracts and leases. We learn this from the docket minutes and the signed order. Details will follow from our reporters who attended the hearing today.

[ Update 4: The transcript [PDF] of the hearing is now publicly available, as of November 23rd.]

Read it and weep:

1160 - Filed & Entered: 08/23/2010
Minute Entry
Docket Text: Minutes of Hearing held on: 08/23/2010
Subject: SALE PROCEDURES.
(vCal Hearing ID (117650)). (related document(s) [1157]) (SS) Additional attachment(s) added on 8/23/2010 (SS).

1161 - Filed & Entered: 08/23/2010
Order
Docket Text: Order (I) Authorizing the Marketing, Auction and Sale of Substantially All of the Debtors' Software Business Assets Consistent with Form Asset Purchase Agreement and Free and Clear of Liens, Claims and Encumbrances (II) Authorizing Assumption, Assignment and Sale of Certain Executory Contracts and Unexpired Leases (III) Approving Bidding Procedures in Connection with Auction (IV) Establishing Sale Hearing Date and (V) Granting Related Relief (related document(s)[1141]). Order Signed on 8/23/2010. (MDE)

The additional attachment is the sign in sheet. Someone new was there for the US Trustee's Office, a name that looks like Juliet San Kessir. I see no such name on the staff at the Wilmington office. Perhaps she is new. I don't know what has happened to Joseph McMahon, but his name is still on the list. [Update: It's Sarkessian, RFD tells me, and she is on the list.]

IBM and Novell/SUSE were there as well, or more exactly their lawyers were. HP and Oracle reserved their rights, and once the sale is announced after the auction, and we find out who the happy buyer is, then you'll see everyone show up. But the auction has been approved. The details are in the order. Everything that matters is not.

MikeD has filed his report:

The meeting started a few minutes late. Interestingly, the representative for the US Trustee sat at the SCO table. This has never happened before. She questioned Ms. Fatell several times on dates and contract language.

Ms. Fatell:

Item 1. Motion authorizing engaging King & McCleary LLC to perform Tax Return Services. There was no objection and the Judge approved.

Item 2. Motion to sell the business -

Ms. Fatell began by asking that the judge approve the procedures. She spoke briefly about how the judgment had gone against them in both the jury trial and the rulings from the judge afterward. She pointed out that an appeal had already been filed. Judge Gross nodded and mentioned he was aware of the rulings.

Ms. Fatell spoke about how the sale is consistent with previous court rulings, even though Novell may have a different view. The sale of the business is the next logical step.

She spoke about how Ocean Park Advisors (OPA) has been working on it, and doing due diligence, and preparing the business for sale.

She then confused us all when she started speaking of dates. I wrote what she said, but a few minutes later she said the dates were correct in the proposed order, which is now filed.

She then spoke of the objections. There were two objections regarding reservation of rights, and one comment.

She spoke of Oracle's concerns. Their concerns will be addressed as requested in the contract language. Oracle had no representation at the hearing. Judge Gross seemed surprised, and asked if he was on the teleconference. He was not.

HP had a release signed some time ago with SCO. They wanted assurances that a new owner will not sue them. Ms. Fatell indicated that wording would be put into the final contract.

The US Trustee wanted changes relating to the wording of the sale motion. They reserved the right to reject bids. They asked for some changes to the bid procedures. The US Trustee also reserved the right not to proceed with the sale. (This sounded like boilerplate language changes to me).

Then we got to Novell:

Novell had filed a reservation of rights. They have NOT objected to the sale of the business.

Novell has asserted rights which the Trustee (Mr. Cahn) does not necessarily agree with. Specifically, these hinge on whether a prospective buyer will assume the terms of the original Santa Cruz APA. Ms. Fatell said that the Trustee (Cahn) feels the language is consistent with previous court rulings.

Mr. Capucilli spoke for Novell.

We filed a reservation of our rights. We do not object to the marketing order. We reserve the right to object to the terms of the APA assignment. The other issues which must be addressed are "cures", and whether a successful bidder can actually perform the duties of the assigned contract.

The was a comment of whether ??? was planning to sell licenses. I did not hear the whole comment.

Mr. Capucilli:

The issues are a three tiered question:

1. Rights being sold - Are these the same rights as sold to by Novell to Santa Cruz Operation?

2. APA - Novell's consent is required.

He then spoke briefly that this was not the time to litigate these issues. There is no buyer and no deal yet. However, Novell reserves its rights in this matter. He spoke about how Novell would like to resolve this without further expensive litigation.

3. Cure Amounts

[MikeD comment - that's all that was said. While "cures" was mentioned several times, no one went into any detail at all.]

Mr. Capucilli spoke about the timeline and the short amount of time between objection deadline and the proposed auction. (2 days)

Ms. Fatell said she was pleased the Novell wanted to work with them without further litigation.

Judge Gross said, "Let me see how I can be helpful" and pulled out his calendar. After some discussion, it was decided the objection date will be Nov. 1. The next hearing on the sale will be Nov. 8. The judge canceled the Nov. 3 Omnibus hearing, and it will all be done at the Nov. 8 hearing at 10:00.

[The correct dates and deadlines are in the proposed order. I wrote down what Ms. Fatell said. But even she got confused and conferred with the US Trustee. In the end, they said the correct dates are in the order.]

The judge said the bidding process appears fair. He hopes for an active auction. Everyone's issues will be addressed.

The judge also said he reserves his rights to decide any issues as they come up. Meeting adjourned. The meeting was 20 - 25 minutes long.

An "active auction." There are soooo many people who'd like to do business with SCO, after all. Maybe someone will ride in on a camel.

Let me translate one part of this for you. When Novell says that it hopes this can be resolved without expensive litigation, it means Novell certainly will litigate if it can *not* be properly resolved. Ms. Fatell's remark means that she understood the message.

Interesting that the US Trustee sat at the SCO table, don't you think?

Update 2: RFD writes that MikeD has covered it so well, he'll only add this:

There was some fine tuning of the dates, and it is probably best to look at the signed order for what was finally agreed to.

There was general agreement to ignore, for now, the "elephant in the room." November 8 is now the big day,

So today SCO loaded the cannon, but no fireworks until November 8. If you look at the order, you will see that the dates are as follows:

  • October 5 - deadline for submission of bids to Blank Rome and Ocean Park, with all the massive paperwork involved in proving who the bid is from and that the person or entity has the funds to buy what it wishes to bid on at the auction, including any terms of "proposed employment of any of Debtors' employees, management, or officers in connection with such bid", plus a cash deposit of 10% of the total purchase price. The Ch. 11 Trustee will then decide if they are qualified to bid and can reject bids.

  • October 15 - SCO has to serve a copy of the "Cure Notice" by mail on all non-debtor parties to the contracts it wants to assume and assign, letting them know the cure amount that SCO proposes. They then have ten days to object.

  • October 25 - The auction at Blank Rome's office in Wilmington, Delaware at 10 AM.

  • November 1 - The non-debtor parties to the contracts have until this date to object to the Assumption Notices "solely on the grounds that they have not received adequate assurance with respect to their Assigned Contract(s)."

  • November 1 - Objections to any proposed transaction must be filed by this date, by 5 PM.

  • November 8 - Sale Hearing. This will be the hearing to approve the highest bidder getting the goods. The highest bidder and the backup bidder(s), if any, will have to provide a competent witness to show up and provide testimony at the hearing "to provide adequate assurance of future performance by each such bidder". At this hearing, the Trustee will ask the court to approve all the contemplated transactions, and if the highest bidder doesn't close, the backups can, starting with the highest backup bidder.

  • November 30 - Closing.

So you can see why November 8 is the day the fireworks, if there are any, will begin to go off.

Update 3: I had a chance to listen to the audio. I wish I could play it for you, but court rules make that impossible. But I did take notes, and here are my impressions. Novell's comment about hoping to avoid litigation was said in this context: Novell suggested that SCO let them know about the deal and who the bidder is, to run it by them, in the hopes of avoiding litigation. But it was also clear that they anticipate objecting. SCO already has bidder(s) lined up, and I suspect Novell's decision on whether or not to object will pivot on who the bidder is. Also they are concerned that SCO assume the APA, that they can't sell off SVRx assets. If they exclude them, then Novell would not have to object to that part of things. Or assume and transfer with Novell's consent only. SCO's position to that is that they don't have to assume the APA, due to the court's rulings, that SCO has been running the business without doing so thus far, and this is just more of the same. I'm sure Novell will object to that in due time.

The US Trustee's Office had concerns about notice. They felt the original plan wouldn't provide those whose contracts are to transfer enough time to object. That is the reason for the changes to the dates. Also Novell wanted more time to object and that is why the sale hearing date was changed. Overall, my impression is that everyone knows there will be litigation on this issue. But you have to wait until SCO lets us all know who the bidder is who wins. I find it more than odd that SCO already knows who the bidders are that are lined up, but they don't say who they are. So I suspect they know everyone would hate the deal, so they tried for short times to object, got caught on it by the US Trustee and Novell, and had to change the dates. It's still rather short, but it is what it is.

The judge asked if Adam Lewis would be there for the sale hearing, and the new Morrison & Foerster lawyer there said it would depend on availability but he believed he would. He said it in a way that made me feel that he was a younger man, sent on this mission because Lewis couldn't come today due to another case or whatever, but that Lewis for sure would be there if at all possible for the main event, the sale hearing. But he did well, getting the judge to change the date that Novell was concerned about.

It was also, I gather, the case that the judge has been informed of things that are not on the record that we, the public, have heard. That's bankruptcy court, but it gives me the creeps. Watching Ms. Fatell, to me, is like watching a magician. He knows the trick he's working through, but he points you, the public, elsewhere, so your eyes are busy looking at his sleeve when you should be looking at his other hand. Just my impression. And she is always nervous, her voice, at the most significant parts. I hear it in her voice. As well she should be if the buyer turns out to be who I suspect it will be.

The judge has an odd moment. He says at the end that Novell is reserving its rights to object, and that he reserves his rights to rule. He catches himself and rewords it, but I got the definite impression that he has no intention of ruling in Novell's favor on any objections, unless he absolutely has to by law.

HP, it turns out, has an agreement by which SCO promises not to sue them. Blech. So that is HP's concern, that they want any new person to have to agree to that as well. And SCO agreed.

So. Fireworks on November 8 at the sale hearing. I definitely hope you guys can go.

So with that introduction, here are my notes:

Fatell: She believed the judge knew about the jury and judge finding for Novell.

OP has been having discussions with potential bidders so Ocean Park is up and running.

Oct. 11 - will identify a stalking horse, if there is one.

Oct 18 protections for the stalking horse bidder.

Oct. 25 - auction (judge says no, so she says she read from draft, and the dates are changed in the order)

Two reservations of rights and two informal requests or comments:

Oracle, who has a contract and ask that cure notice go to them by email.

HP have contracts and entered into a form of release agreement, and wanted to be sure that any purchaser would be bound by it. SCO agrees to that.

US Trustee's Office sent emails and they talked by phone and made some changes to the bid procedures. Oct 15th deadline for cure notice. Not enough time to give notice, so also agreed that contract parties give us contacts, so when we send out notice of successful bidder. Then sale hearing can go on Nov. 3. US Trustee's office was concerned that there wouldn't be time to send out notices to them.

US Trustee has ability to reject any bid. They asked for language on that.

Section G has changes in the bid procedures section, that if it doesn't close, again the trustee reserves right to not do the sale. SCO reserves the right to change the timeline, other than the sale.

Paragraph 9 there is another change on the date. [She confers with the US Trustee's Office's Ms. Sarkessian.] The date is correct. But paragraph 4 date is changed. And agreed that when they send out notice of contracts and bidder, they'll send out notices of their adequate ability to assume.

Novell reserved rights, not objecting to order. SCO gave a lengthy response, that what Novell has asserted that the trustee is required to assume the APA and that would have to cure monetary defaults. SCO responds that based on court's rulings, SCO believes it doesn't have to assume the contract, that they've been running the business and will continue to do so. They are not assuming, because the court's rulings have mooted that as a requirement.

David Capucilli of Morrison & Foerster for Novell, standing in for Adam Lewis: No objection to the sale right now. Premature. But to the extent that SCO is selling assets without cure or assumption. SVRX assets. They must assume and assign. WHether rights are being sold that are under APA; APA is it executory contract? If those two are answered yes, then the question is do they have to assume and cure?

Don't want to argue that now. Foreseeable that a party could come in with a different deal, so not necessary to argue it now.

To the extent they have a deal and wish to run it past Novell rather than go through expensive litigation, that's fine. If they list the SVRx assets as excluded, fine.

We appreciate the Trustee's changes. Point out the tight timeline bet. auction and objection deadline for the sale. Oct. 27 deadline for objections. Two days is tight. We may not have time, as there may be a lot of discovery needed.

If he could change. He is asked what he'd want. He suggests Nov. 1, two days before the hearing.

Judge asks Fatell how she feels.

Fatell: First, please to hear Novell is willing to consider the deal, who the bidder is, and try to resolve without litigation, but anticipating there may be an objection, that is why they gave a few days, but if there is an objection from Novell on sale, with legal issues needing to be briefed, we felt we needed time for that.

Judge: Let me see how I can be helpful.

Fatell: Move the sale hearing?

Judge: I can do the sale hearing on Nov. 5 or 8.

Fatell: She says 8th.

Judge: Good. Lewis coming? Capucilli says he believes he will be there. 10 AM, then.

Oct. 27 objection deadline to the 1st. That was the omnibus hearing, so that will be the same date. Recessed.

Mr. Capucilli is an Associate at MOFO. Mr. Lewis is Senior Counsel there. So that tells us again that this hearing was not the main tent. That will happen on November 8, and that's why Mr. Capucilli said, with a bit of a smile, that he thought for sure Mr. Lewis would be at the November 8 sale hearing. This is what large firms do, by the way. They let their associates appear and gain experience, with oversight standing right by them, at events where it is not expected that anything totally central or unexpected might happen if the usual guy has a conflict in the schedule. But for the latter, they send in the general. That's what you'd do too, of course.

You know what is weird to me about SCO's position? That when SCO still claimed to own the copyrights, it was stopped from selling the software business due to Novell's objections that it couldn't sell what it didn't own, and Novell claimed ownership of the copyrights. Now that SCO knows it certainly doesn't own the copyrights, after both jury and judge at the second trial so ruled, now it says it can therefore sell or license what it does not own? I am not positive I have comprehended their position, or precisely what is on the list to sell or license or transfer, but it's something to keep an eye on as more details surface, as indeed they must once the deal is in place and waiting for approval. But as Novell and all at the hearing pointed out, this isn't the day to argue about those things.


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