Posted on 06/23/2009 11:20:27 AM PDT by ShadowAce
SCO has filed its proposed plan. I have only quickly skimmed it, but what I see immediately is that it wishes to sue Linux users, and it lists a Java patent, and I'm guessing there may just be a connection someday. Who knows? SCO loves to sue, I've decided.
It wants to sell some of the Mobility business, retaining part of it, along with selling the Unix business and "many of [SCO's] subsidiaries" to an entity called UnXis. I've never heard of it either. Think there might be trademark issues? Try going to Google and search for "unXis Delaware" and you get a list of UNIX jobs and such. The APA is signed by Steven Norris. If you go to Delaware Division of Corporations, you'll find there is a UNXIS, Inc. incorporated this month, on the 12th. You'll find the part about suing other Linux users on page 3, paragraph 5.
SCO will retain the litigations, and I gather the plan is to make them as close to counterclaim-proof as one can be. We'll read the details together. If they provide them. I note the opening words say that the APA is attached as Exhibit A, "without voluminous schedules and exhibits". I don't know about IBM, Novell, and the US Trustee's Office, but I would prefer to read those voluminous schedules and exhibits, myself. They say it'll be posted someday on their website.
[Update 2: SCO has posted a FAQ on their website, that makes me wonder if this is really a sale or just a renaming. Let me show you some key paragraphs.
Notice how they describe the "sale", which seems to be more rearranging the deck chairs on the Titanic and calling it unXis -- I've highlighted the significant bits:
- By the way, did you catch the part about "other potential defendants" in addition to Novell, IBM, Red Hat and AutoZone? Everybody pretty much goes to unXis, leaving McBride as captain of the Good Ship SCO, and he gets to sue and sue and sue, while the assets have gone to unXis, so if SCO loses all the litigation, then the victors get no spoils and can't be be made whole by the legal process. But what particularly struck me is SCO saying that they will be able "to move the UNIX business forward with unXis in a very exciting way." "With unXis"? In what sense? It starts to hint that this is more a renaming, taking in some new management who seem to have financial expertise, and SCO keeps skipping along as unXis, with the dangerous litigation spun off safely into a litigation troll. Is that not what you see? End Update 2.]Overview
unXis to Acquire SCO's UNIX Business
On Monday, June 15th, SCO notified the bankruptcy court that The SCO Group had signed a definitive Purchase and Sale Agreement with unXis, Inc. (unXis) which we believe should help resolve in our favor the motions by IBM and Novell (and the US Trustee) to convert our Chapter 11 bankruptcy case to a case under Chapter 7 liquidation. This sale of the UNIX business, and some mobility assets, to unXis would favorably resolve the bankruptcy for our creditors, customers, shareholders and partners. ...
The Court has set the date of July 27 th to review the agreement and motions and has stated that it will enter a decision within a few days thereafter. SCO is confident and optimistic that the agreement with unXis will satisfy all conditions and parameters to allow SCO to pay its creditors, satisfy any legal claims, emerge from bankruptcy and to move the UNIX business forward with unXis in a very exciting way.
The Purchase and Sale Agreement (PSA) has been signed by The SCO Group and certain of its subsidiaries as sellers and unXis, as buyer, pursuant to which the UNIX product business will be sold to unXis. unXis has been organized by Gulf Cap Partners LLC and the MerchantBridge Group. MerchantBridge is a London-based private equity and direct investment company with strong links in the Middle East and a prestigious pedigree of transactions in the telecommunications and related sectors (www.merchant-bridge.com). Gulf Cap Partners was formed by a number of private equity professionals from the US and the Gulf to take advantage of the substantial changes in the private equity markets brought about by the financial crisis (www.gulfcappartners.com). Both Gulf Cap Partners and MerchantBridge will take an active role in the management of unXis.
A few of the key components of the PSA are as follows:
- The buyer's management team is expected to consist of new and existing SCO management that will lead the UNIX business forward.
- The SCO Group will continue with certain natively grown Me Inc. mobility applications and continue its efforts to reach a successful conclusion of litigation issues related to Novell, IBM, RedHat, and AutoZone and other potential defendants. Darl C. McBride will continue as CEO of The SCO Group.
- Most of the current SCO staff, including developers, support personnel, sales and marketing are expected to join unXis.
- All UNIX products as well as the SCO Mobile Server products will be sold to unXis.
- OpenServer and UnixWare product lines will be kept up to date and maintained into the future with new product roadmaps.
- Significant investment will be put into "virtualization" products.
- Significant investment will be made to develop and market a next generation UNIX operating system platform.
SCO customers and partners can feel confident that they will be able to continue to purchase licenses, receive support and development for the core SCO UNIX products now and into the future.
Here are the filings, for your reading pleasure:
Mark Billion? Who is that? Perfect name for a SCO lawyer filing this plan, I must say. Must be from Central Casting. No. Just a Pachulski, Stang attorney. They've filed another bill, as you see.06/22/2009 - 814 - Quarterly Application for Compensation [Sixth] and Reimbursement of Expenses as Co-Counsel to the Debtors and Debtors-in-Possession, for the Period from January 1, 2009 through March 31, 2009 Filed by Pachulski Stang Ziehl & Jones LLP. Objections due by 7/13/2009. (Attachments: # 1 Notice # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Certificate of Service and Service List - Fee App# 6 Certificate of Service and Service List - Notice only) (Jones, Laura Davis) (Entered: 06/22/2009)
06/22/2009 - 815 - Motion For Sale of Property under Section 363(b) /Debtors' Motion for Authority to Sell Property Outside the Ordinary Course of Business Free and Clear of Interests and for Approval of Assumption and Assignment of Executory Contracts and Unexpired Leases in Conjunction With Sale Filed by The SCO Group, Inc.. Hearing scheduled for 7/27/2009 at 09:00 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 7/20/2009. (Attachments: # 1 Notice # 2 Exhibit A - Part 1 # 3 Exhibit A - Part 2 # 4 Exhibit B # 5 Exhibit C) (Billion, Mark) (Entered: 06/22/2009)
Here is the paragraph about suing:
5. In summary, the Purchase and Sale Agreement provides that the Purchaser will buy and the Debtors will sell generally, the Debtors' UNIX business and many of its subsidiary companies, and certain of their Mobility products. The Debtors will retain certain Mobility applications, their cash, their accounts receivable, and their litigation and related claims against International Business Machines Corporation, Novell, Inc., AutoZone Corporation, Red Hat and certain Linux users which are not material customers of UnXis (excluding certain large-scale users of Linux servers) that are claimed to have infringed against UNIX copyrights....I suppose that could mean the DaimlerChryslers of the world, the companies that signed contracts with AT&T and Santa Cruz, never imagining that a day would come when a SCO Group would arise, with the contracts in its teeth, looking for blood. Of course, SCO would have to get Novell off its back first, and then it would have to prove it owns the copyrights, and then it would have to prove infringement of specific copyrighted materials, not one step of which SCO has so far been able to accomplish.
But look at the yearning, the determination to do harm to Linux. Is it not a bit like the feeling you get watching a horror movie?
On selling off many of the subsidiaries, I surely hope IBM and Novell and the US Trustee's Office looks closely at the money flow.
Here's a screenshot of the filing in Delaware:
If anyone can help doing text of the APA itself, Exhibits A and A2, I'd appreciate it a lot. Since SCO mentioned at the last hearing that they used the failed York APA as a template, you probably can too. It might be interesting to compare them, anyway.
Here's the Motion as text. As I was doing the HTML, I couldn't help but notice that it says that if the court of appeals overturns the Utah court, then the letter of credit for the benefit of Novell, Inc. will be extinguished. When would that happen, though? After it goes all the way to the Supreme Court?
Update: I don't think SCO necessarily intends for Novell to get paid. And I am not convinced Mr. Norris and unXis are in this venture with a whole heart. Take a look at this part of the APA [PDF], page 21, at the bottom of the page, about the letter of credit being set aside to pay Novell, if the appeals court affirms:
What? Say, what? UnXis pays out nothing if there is no ruling by August 31? Or, even worse, they pay nothing if SCO doesn't draw on the letter of credit by December 31, 2009? How in the world would that happen, when they already set it up SCO only pays Novell after the appeal is final, IIRC? If the court remands part of the case, and there is a jury trial, do you sincerely believe it will be over, including appeals, by December 31st? Me neither. In short, I don't see how this could be considered a guarantee to pay Novell what is due. Do you? Same old, same old. SCO is nothing if not consistent. I gather, then, that the deal dies on August 31, unless SCO prevails on appeal in some manner. So, it's SCO, asking the bankruptcy court to let Norris once again join SCO in getting a delay based on a wing and a prayer, hoping against hope the appeals court rules favorably and in time. But Norris risks nothing if SCO goes splat on or prior to August 31. Note the stalking horse fee, though. They never leave that out, do they? That's how much Mr. Steven Norris and whoever is funding this little detour really believes in SCO.(iii) in the event that an amount in excess of the face amount of the Letter of Credit-Sun is owed and payable to Novell, Purchaser shall have no obligation to pay all or any portion of such excess; and
(iv) in the event that (A) on or prior to August 31, 2009 the District Court Sun Agreement Judgment is neither affirmed in whole or in part nor reversed and/or remanded in whole or in part or (B) for any reason whatsoever, the Letter of Credit-Sun is not drawn by SCO Group or Escrow Agent on behalf of and in the name of SCO Group on or before December 31 2009, the Letter of Credit-Sun shall terminate and SCO Group shall have no rights with respect thereto and Purchaser shall have no obligation to pay such portion of the Purchase Price.
As for SCO, it wants a delay, but I suspect this APA is sending a message to IBM to buy them on the 27th, and make this headache go away. I hope IBM doesn't, but that's how I read this document.
Suing users do not good business make.
Justin Case.
Sounds like they are admitting that they are violating bamkruptcy statutes.
LOL. Good luck with that.
There is no end to all of this nonsense.....?
Now that SCO has found a “buyer,” it will take a while longer to drain the extra cash from SCO.
The opposition lawyers were right, they should have gone straight to the Chapter 7 issue last week. They should have ignored this supposed sale, which I think everybody but the judge knew was a scam as soon as it was mentioned.
Insanity.
The Revenge of the Undead Company.
Heck—I’m not that involved with all the legal stuff going on, and I knew it was a scam as soon as I heard it.
In summary: Their bankruptcy hearing last week was supposed to be about liquidating SCO, and they signed this agreement literally minutes before the hearing so they’d have an excuse to hold off the liquidation hearing.
Motto’s for the American Elite CEO’s:
1. Hi! I’m too stupid to be alive.
2. I’m stupid and proud of it.
3. Me, myself, and I....that’s what counts.
4. I brought down the world economy and I’m PROUD of it.
5. There is no sacrifice that others should make on my behalf that can be too great...but dare yee not ask anything in return.
6. Sure we went bankrupt, but what about my bonus.
7. It’s not what you accomplish, it’s what you can get away with that counts.
8. Always remember: someone else is to blame.
9. I don’t have enough money. Someone give me some more money....lay off employees if needed.
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