SCO Grp v. Novell Inc

Filing 260

DECLARATION of Edward Normand re 259 Memorandum in Support of Motion, filed by SCO Group. (Attachments: # 1 Exhibit 1 Part 1# 2 Exhibit 1 Part 2# 3 Exhibit 1 Part 3# 4 Exhibit 1 Part 4# 5 Exhibit 2-9# 6 Exhibit 10-20# 7 Exhibit 21-27# 8 Exhibit 28-31# 9 Exhibit 32-34# 10 Exhibit 35 Part 1# 11 Exhibit 35 Part 2# 12 Exhibit 36-41)(Normand, Edward)

SCO Grp v. Novell Inc

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Dockets.Justia.com

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Brent 0.Hatch (5715) Mark F. James (5295) HATCH, JAMES & DODGE 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: [phone] Facsimile: [phone]

Robert Silver (admitted pro hac vice) Edward Normand (admitted pro hac vice) BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Telephone: [phone] Facsimile: [phone] Stephen N. Zack (admitted pro hac vice) BOIES, SCHILLER & FLEXNER LLP Bank of America Tower - Suite 2800 100 Southeast Second Street Miami, Florida 33 13 1 Telephone: [phone] Facsimiie: [phone]

Stuart H. Singer (admitted pro hac vice) BOIES, SCHILLER & FLEXNER LLP 401 East Las Olas Boulevard - Suite 1200 Ft. Lauderdale, Florida 33301 Telephone: [phone] Facsimile: [phone]
Attorneys for The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC., PlaintiffICounterclaim Defendant, v. NOVELL, INC.,
DefendantICounterclaim-Plaintiff.

DECLARATION OF KIM MADSEN
Case No. 2:04CV00139 Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

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I, KIM MADSEN, declare as follows: 1. I submit this Declaration in connection with The SCO Group, Inc. v. Novell, Inc.,

Case No. 2:04CV00139DAK (D. Utah). I have previously signed a Declaration in connection with this lawsuit and with The SCO Group, Inc. v. International Business Machines Corporation, Case No. 2:03CV0294DAK (D. Utah). 2. I describe my education and work history in my previous Declaration, which I

incorporate and adopt here. 3. In 1995, I was employed as a Manager in the Law and Corporate Affairs group at

The Santa Cruz Operation, Inc. ("Santa Cruz"). I worked with substantially with Steve Sabbath, the General Counsel for Santa Cruz.
4.

As I explained in my previous Declaration, I participated in the negotiation of

Santa Cruz's acquisition of the UNIX and UnixWare business from Novell, Inc. ("Novell") as support Santa Cruz's legal team. I worked with and participated in several meetings and teleconferences with the lead negotiators and others on both sides of the transaction. 5. In this Declaration I explain Novell's retained interest in royalties paid under

certain existing agreements under the Asset Purchase Agreement (" A P A ) dated September 19, 1995, and Amendment No. 1 thereto dated December 6, 1995. The negotiations and drafting of the APA occurred under a compressed time schedule. To avoid delay, the parties executed the APA with the intent to clarify it, as necessary, through an amendment to be executed on the closing date. That amendment was Amendment No. 1 to the APA. 6. Santa Cruz's intent and agreement under the APA and Amendment No. 1 was for

Novell to transfer the entire UNIX business, including the UNIX source code and copyrights, to

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Santa Cruz except for binary royalties paid under the existing agreements pursuant to which UNIX System V (or "SVRX") licensees were paying such royalties, and which Novell conveyed to Santa Cruz under the APA as part of the UNIX business. Santa Cruz also intended and agreed that it would pay part of its revenues earned from the ongoing UnixWare business if Santa Cruz hit certain annual distribution or sales benchmarks through December 2002. Santa Cruz did not intend or agree to remit any other fees, royalties, or amounts under any other existing or prospective agreements. 7. This binary royalty interest that Novell retained was simply a means to lower the

purchase price to SCO. My understanding was that Novell had no interest in continuing in the UNIX business at all, and if Santa Cruz could have paid the full purchase price originally proposed by Novell, Novell would not have retained the binary royalty stream or any rights to protect that royalty stream. That context makes it clear that it was the intent of the APA and Amendment No. 1 that Novell retained rights to protect that existing binary royalty stream, but there was no reason or interest for Novell to have broader rights relative the UNIX business and assets it sold Santa Cruz.

8.

The language of the APA and Amendment No. 1 reflects the foregoing intent and

agreement. Section 1.3(a)(i) of the APA states: "It is the intent of parties hereto that all of the Business and all of Seller's backlog, if any, relating to the Business be transferred to Buyer." Section 1.2(b) of the APA provides that Santa Cruz will pass through 100% of the "SVRX Royalties" as defined and described in Section 4.16(a), and Novell will pay Santa Cruz an administrative fee of 5%. Section 4.16(a), in turn, defines "SVRX Royalties" by reference to the SVRX Licenses listed in the Schedule to the APA listing the assets transferred, Schedule 1.1(a).

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Indeed, Section 1.2(b) specifies: "Seller and Buyer further acknowledge and agree that Seller is retaining all rights to the SVRX Royalties notwithstanding the transfer of SVRX Licenses to Buyer pursuant hereto, and that Buyer only has a legal title and not an equitable title in such royalties within the meaning of Section 541(d) of the Bankruptcy Code.'' (Emphasis added.) These provisions reflect Santa Cruz's intent that it would remit only the Royalties paid under the licenses transferred, not Royalties from future licenses not yet in existence (and thus not transferred).

9.

Section 4.16(a) includes this language: "Following the Closing, Buyer shall

administer the collection of all royalties, fees and other amounts due under the SVRX Licenses (as listed in detail under Item VI of Schedule 1.1(a) hereof and referred to herein as 'SVRX Royalties')." Schedule 1.1(a) identifies the "SVRX Licenses" by product name and release, which reflected Santa Cruz's intent to refer to the specific product supplements that identified the licensed product and source code right-to-use fees, sublicensing fees, and per-copy distribution fees that applied to the licensed product, which fees were not identified in any other agreement signed by the licensee. 10. As to the reference in Section 4.16(a) to "all royalties, fees and other amounts due

under the SVRX Licenses," the parties addressed that part of Section 4.16(a) in Amendment No. 1, which added Section 1.2(e) to the APA. Section 1.2(e) clarified the four categories of fees that Santa Cruz retained notwithstanding Novell's right to receive the binary royalties due under the transferred SVRX Licenses:

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Sections 1.2(e)(i) and 1.2(e)(iv). Santa Cruz would not remit future revenues from contracts to provide support or maintenance to existing SVRX licensees, nor the binary royalties due under Santa Cruz's own SVRX licenses. Section 1.2(e)(ii). Santa Cruz would not remit source code fees paid under any amendment to an SVRX License granting an additional copy of the SVRX product or the right to use it on an additional CPU. Section 1.2(e)(iii). Santa Cruz would not remit source code fees paid under new SVRX licenses approved by Novell pursuant to Section 4.16(b) of the APA. Novell had the right to approve new SVRX licenses solely to protect Novell's interest in the existing SVRX binary royalty stream, such as where Santa Cruz might have sold an SVRX licensee a new version of the product (not a UnixWare license) and thereby extinguished the binary royalties due to Novell. If there were any ambiguity on that meaning of Section 1.2(e)(iii), Amendment No. 2 made clear, referring to the APA, that "Novell may not prevent SCO from exercising its rights with respect to SVRX source code in accordance with the Agreement." 11. Amendment No. 1 made clear that Santa Cruz was not prohibited from amending

or entering into new SVRX licenses as an incidental part of licensing UnixWare. UnixWare products are built on the prior versions of the UNIX technology. Accordingly, when Novell and its predecessors licensed a UnixWare product, they also licensed all prior products as an incidental part the license. Amendment No. 1 reflected the parties' intent and understanding that Santa Cruz would continue to license the prior UnixWare and SVRX products with its UnixWare

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licenses without additional approvals from Novell and without remitting any payments to Novell. This was simply consistent with the reality of licensing UnixWare. 12. The APA and Amendments thereto thus reflect Santa Cruz's intent in entering

into the APA: Santa Cruz was obligated to remit to Novell only the binary royalties that were then being paid and that would continue to be paid under the existing agreements pursuant to which UNIX System V licensees were paying such royalties, and which Novell conveyed to Santa Cruz under the APA as part of the UNIX business. 13. Novell's rights under the APA and Amendment No. 1 either to approve SVRX

licenses or to require SCO to waive or take other actions relative to those licenses related solely to the existing licensees who were paying binary royalties that Santa Cruz would pass through to Novell. Novell had no right to direct SCO to do anything regarding licenses or the UNIX business Novell sold to SCO except to protect the licensing stream that was in place in September 1 995.

14.

I understand that Novell also takes the position that the interests it was granted in

the APA and amendments thereto to protect the royalty stream it retained gave Novell protection from competition with respect to competitors such as Sun and Microsoft. The APA and its amendments were never intended to afford Novell any such prospective protections. There was never any discussion or agreement of any kind regarding any such competitive protections. In fact, the only non-compete provision in the APA imposed restrictions on Novell to the benefit of Santa Cruz. 15.

I declare under penalty of perjury that the foregoing is true and correct to the best

of my knowledge.

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Executed:

December 11,2006

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EXHIBIT 22

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Page 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH THE SCO GROUP, INC., Plaintiff/Counterclaim defendant, vs. NOVELL, INC., Defendants/Counterclaim-Plaintiff DEPOSITION OF KIM MADSEN Februrary 13, 2007 Pages 1 - 242 CASE NO. 2:04CV00139

:

REPORTED BY LAWRENCE PAUL NELSON, CSR 12144 JOB NO 191725

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Q. Why don't you turn to Exhibit 51, which is 11:56:28 your declaration, and I'll ask you to look at 11:56:31 whatever you feel comfortable to look at, but I 11:56:47 believe that paragraphs 8 -- 8 through 12 relate to 11:56:50 your beliefs concerning UNIX ownership. 11:57:03 A. Yes. 11:57:08 MR. NORMAND: Objection to form. 11:57:09 BY MR. BRAKEBILL: 11:57:16 Q. Is it a fair statement that -- well, let 11:57:17 me ask it this way. What, if any, other provisions 11:57:21 in the asset purchase agreement did you rely upon in 11:57:25 your belief in this declaration that UNIX copyrights 11:57:27 did transfer from Novell to Santa Cruz? 11:57:30 A. I don't know. I don't remember which 11:57:39 specific provisions. And I'd be happy to take the 11:57:41 time to review this document if you want me to do 11:57:46 that. 11:57:50 Q. I'll give you the opportunity in due 11:57:53 course. I'm trying to test your memory aside from 11:57:56 having the document in front of you right now. You 11:57:59 gave the declaration on UNIX ownership two months 11:58:02 ago; is that right? 11:58:06 MR. NORMAND: Asked and answered. 11:58:08 THE WITNESS: November 4th. 11:58:10 BY MR. BRAKEBILL: 11:58:11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

point to in the absence of reading the agreement 11:59:49 afresh, yes. 11:59:53 BY MR. BRAKEBILL: 11:59:56 Q. And how, if at all, do you believe that 12:00:07 recital A and section 1.1(a) of the asset purchase 12:00:09 agreement -12:00:14 A. And schedule 1.1(a), which is referenced 12:00:15 in section 1.1(a). 12:00:20 Q. How do you believe that recital A, section 12:00:23 1.1(a), and schedule 1.1(a) influenced your personal 12:00:27 belief that UNIX copyrights did transfer from Novell 12:00:34 to Santa Cruz? 12:00:44 A. Because all right, title, and interest -- 12:00:44 let me get the language here, in and to the assets 12:00:48 relating to the business, which is UNIX and 12:00:52 UnixWare, were being conveyed to SCO. And included 12:00:58 in that would have, of course, been the copyrights. 12:01:03 Q. And did you understand that in section 12:01:07 1.1(a) of the asset purchase agreement that -- I'll 12:01:10 refer you to the last sentence, that notwithstanding 12:01:16 schedule 1.1(a) the assets to be so purchased shall 12:01:21 not include the assets set forth on the schedule 12:01:24 1.1(b)? 12:01:28 MR. NORMAND: Objection to form. 12:01:29 THE WITNESS: Yes. 12:01:30

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Q. In the last two to three months you gave a 11:58:11 declaration in which it was your personal belief 11:58:14 that UNIX copyrights did transfer from Novell to 11:58:17 Santa Cruz as part of is the asset purchase 11:58:21 agreement; correct? 11:58:23 A. Correct. 11:58:24 Q. And what provisions, if any, were you 11:58:24 relying upon for your personal belief that the UNIX 11:58:28 copyrights did transfer? 11:58:31 A. Well, I relied on the description of the 11:58:33 business in 1.1(a) and the recital A. I don't 11:58:39 recall which other provisions I may have relied on, 11:58:48 but I also relied on my recollection of the 11:58:54 transaction and the negotiations surrounding the 11:58:59 transaction, the conversations with Novell as to 11:59:03 what they were conveying and the internal 11:59:06 conversations as to what we believed we were buying. 11:59:09 Q. So to make sure that I understand your 11:59:16 testimony, the provisions that you right now can 11:59:19 point to in support of your belief that UNIX 11:59:26 copyrights did transfer from Novell to Santa Cruz 11:59:30 are recital A in section 1.1(a) of the asset 11:59:33 purchase agreement; is that correct? 11:59:39 MR. NORMAND: Objection to form. 11:59:42 THE WITNESS: The provisions that I can 11:59:46

BY MR. BRAKEBILL: 12:01:31 Q. And notwithstanding the excluded assets 12:01:32 provision from section 1.1(a), is it still your 12:01:36 personal belief that the UNIX copyrights did 12:01:40 transfer? 12:01:42 A. Yes. 12:01:43 Q. From Novell to Santa Cruz? 12:01:44 A. Yes. 12:01:46 Q. And why is that? 12:01:46 MR. NORMAND: Objection to form, asked and 12:01:55 answered. 12:01:58 THE WITNESS: Because it's clear -12:01:58 BY MR. BRAKEBILL: 12:01:58 Q. Let me put it this way. Aside from 12:02:02 recital A -12:02:06 A. Yes. 12:02:06 Q. -- aside from section 1.1(a) in schedule 12:02:07 1.1(a), is there any other reason for why you 12:02:11 believe that the assets to be so purchased shall not 12:02:14 include the assets set forth in schedule 1.1(b)? 12:02:16 A. I didn't understand the question. 12:02:23 Q. Aside from recital A, aside from section 12:02:24 1.1(a), and aside from schedule 1.1(a), is there any 12:02:28 other basis for your opinion that schedule 1.1(b) 12:02:36 does not operate -- that schedule 1.1(b) does not 12:02:42

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excluded UNIX copyrights from the assets to be sold? 12:02:47 MR. NORMAND: Objection to form, asked and 12:02:51 answered. 12:02:55 THE WITNESS: Yes. As I said before, I 12:02:55 also recall the conversations and discussions with 12:02:59 Novell as to what the intent of the transaction was, 12:03:03 what they intended to convey, what SCO intended to 12:03:13 purchase. 12:03:18 BY MR. BRAKEBILL: 12:03:20 Q. And what did Novell convey to you 12:03:21 regarding what was going to be conveyed to Santa 12:03:24 Cruz with regard specifically to UNIX copyrights? 12:03:28 MR. NORMAND: Objection to form. 12:03:32 THE WITNESS: I do not recall a specific 12:03:36 conversation regarding copyrights, but Novell 12:03:39 conveyed that they were clearly divesting themselves 12:03:47 of the UNIX business. They had no interest in the 12:03:52 UNIX business in retaining any interest in the UNIX 12:03:59 business except to the extent that it related to 12:04:02 Netware. 12:04:02 And they were very clear about what they 12:04:08 were not conveying, which were the patents. And 12:04:16 they were clear about a transaction that they had 12:04:26 entered into with X/Open regarding the trademark so 12:04:29 at no point did they say, "Oh, by the way, we're not 12:04:34

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the patents to begin with, but I remember them 12:06:25 taking the pains that they wouldn't be transferring 12:06:27 patents. And some of the patents had been retained 12:06:30 by AT&T, the original owner of the UNIX technology, 12:06:32 so they weren't Novell's to transfer. 12:06:38 BY MR. BRAKEBILL: 12:06:42 Q. Do you believe that Novell had no rights 12:06:42 in UNIX patents at the time it was entered into the 12:06:44 Novell-Santa Cruz transaction? 12:06:48 MR. NORMAND: Objection to form. 12:06:49 THE WITNESS: I don't know. I know that 12:06:50 some were retained by AT&T but I don't know that 12:06:52 some may have been transferred to Novell. I don't 12:06:55 recall that. 12:06:58 BY MR. BRAKEBILL: 12:06:58 Q. But it is your understanding that no UNIX 12:06:59 patents were being transferred from Novell to Santa 12:07:01 Cruz? 12:07:06 MR. NORMAND: Objection to form, 12:07:06 mischaracterizes her testimony. 12:07:09 THE WITNESS: I'm not sure what you mean by 12:07:09 patents. No patents relating to specific areas of 12:07:11 the UNIX technology. There is no, to my knowledge 12:07:16 no broad patent over all of UNIX. It wouldn't be 12:07:19 patentable, I don't believe, but there were no 12:07:23

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giving you the copyrights." 12:04:39 Q. At any point in time did Novell, anyone 12:04:40 from Novell, say to you, "We're going to transfer 12:04:43 the UNIX copyrights to Santa Cruz"? 12:04:47 A. No I don't recall that. It was assumed by 12:04:52 everyone that, of course, the copyrights were 12:04:55 accompanying. 12:04:59 Q. There were no express words from anyone 12:05:00 from Novell to you saying Novell is going to 12:05:03 transfer the UNIX copyrights to Santa Cruz; correct? 12:05:08 MR. NORMAND: Objection, asked and 12:05:13 answered. 12:05:14 THE WITNESS: That's correct. 12:05:14 BY MR. BRAKEBILL: 12:05:16 Q. Now, you mentioned patents. If you could 12:05:17 turn to schedule 1.1(b) of Exhibit 1 and look at 12:05:22 Roman V on Exhibit 2. Roman V(b) says "all 12:05:47 patents." Do you see that? Is it your 12:05:51 understanding that that relates to all UNIX patents? 12:05:53 MR. NORMAND: Objection to form. 12:05:57 THE WITNESS: I don't remember which 12:06:00 patents there were. I remember a conversation with 12:06:02 Ed Chatlos and I believe Burt Levine that they would 12:06:07 not be transferring any patents. And there was an 12:06:11 issue because, you know -- SCO wasn't interested in 12:06:20

patents relating to the UNIX assets being 12:07:27 transferred, being conveyed to SCO. 12:07:32 BY MR. BRAKEBILL: 12:07:37 Q. If someone were to make a statement that 12:07:37 Novell transferred all UNIX intellectual property to 12:07:40 Santa Cruz, is it your understanding that that 12:07:43 statement would be incorrect? 12:07:45 A. I'm sorry? 12:07:47 Q. If someone were to make the statement that 12:07:48 Novell transferred all UNIX intellectual property to 12:07:52 Santa Cruz, would that be an incorrect statement? 12:07:57 MR. NORMAND: Objection to form, calls for 12:08:02 speculation. 12:08:13 THE WITNESS: I don't understand the 12:08:13 question. 12:08:14 BY MR. BRAKEBILL: 12:08:16 Q. If someone were to say that Novell 12:08:16 transferred all intellectual property relating to 12:08:21 UNIX to Santa Cruz, do you have a view as to whether 12:08:25 or not that statement would be correct? 12:08:29 MR. NORMAND: Objection to form, calls for 12:08:31 speculation. 12:08:51 THE WITNESS: I don't think I can answer 12:08:51 that question. I don't know which patents there may 12:08:52 have been. So if you're including that in your 12:09:02

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definition of intellectual property, then that would 12:09:05 have been excluded. But I believe Novell also, we 12:09:08 licensed back to them certain rights. 12:09:13 So I don't know if that fits into your 12:09:17 definition of conveyance of intellectual property. 12:09:19 So I'm sorry. I can't answer that. 12:09:22 BY MR. BRAKEBILL: 12:09:28 Q. Is it your understanding that the business 12:09:28 that was being sold was a UNIX business? 12:09:30 A. Yes. 12:09:32 Q. And could you turn to attachment D of 12:09:33 Exhibit 1? It ends in the number on the right-hand 12:09:44 corner 977. 12:09:50 A. Uh-huh. 12:10:06 Q. Do you see that this is a document 12:10:07 entitled "Seller's Patents and Patent Applications 12:10:10 Affecting the Business"? 12:10:13 A. Uh-huh. 12:10:14 Q. Do you have any understanding as to 12:10:14 whether these are patents or patent applications 12:10:16 affecting the UNIX business that was being sold to 12:10:19 Santa Cruz? 12:10:23 MR. NORMAND: Objection to form. 12:10:27 THE WITNESS: Yes, I believe they were. I 12:10:32 don't have any specific recollection about the 12:10:36

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representatives where Santa Cruz put the question to 12:12:25 Novell, "Can you transfer the UNIX copyrights to 12:12:28 us?" 12:12:33 MR. NORMAND: Objection to form. 12:12:35 THE WITNESS: No, I don't recall that. 12:12:42 BY MR. BRAKEBILL: 12:12:45 Q. Are you aware of any conversations that 12:13:18 may have taken place between Santa Cruz 12:13:23 representatives and Novell representatives where 12:13:25 anyone from Santa Cruz asked Novell to give them the 12:13:29 UNIX copyrights as part of this deal? 12:13:37 MR. NORMAND: Objection to form. 12:13:42 THE WITNESS: No, I do not recall any 12:13:44 conversation regarding the copyrights. It was 12:13:47 assumed that the copyrights came with the business, 12:13:51 but I do not have any specific recollection about a 12:13:57 conversation regarding copyrights. 12:14:01 BY MR. BRAKEBILL: 12:14:03 Q. So it's fair to say that you were assuming 12:14:03 that the UNIX copyrights were being transferred? 12:14:05 MR. NORMAND: Objection to form. 12:14:08 THE WITNESS: I don't believe that was my 12:14:09 assumption alone, but yes, I was assuming that. 12:14:11 BY MR. BRAKEBILL: 12:14:15 Q. And I take it it's your view that other 12:14:22

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individual patents, though. 12:10:39 BY MR. BRAKEBILL: 12:10:42 Q. I take it you would agree that none of 12:10:42 these patents were transferred to Santa Cruz as part 12:10:44 of the deal? 12:10:48 MR. NORMAND: Objection to form. 12:10:49 THE WITNESS: I believe that's correct. 12:10:53 BY MR. BRAKEBILL: 12:11:25 Q. Now, in your declaration which is on 12:11:27 Exhibit 51 -12:11:29 A. Uh-huh. 12:11:30 Q. -- in paragraph 8 you say, "It was never 12:11:34 agreed or even discussed that Novell would be 12:11:39 retaining any copyrights to UNIX." Do you see that? 12:11:42 A. Yes. 12:11:45 Q. Again, you didn't have any discussions 12:11:46 with anyone at Novell where they told you that UNIX 12:11:48 copyrights were being transferred; correct? 12:11:51 MR. NORMAND: Objection to form and asked 12:11:54 and answered. 12:11:58 THE WITNESS: I don't recall any 12:11:58 conversations with Novell pertaining to copyrights. 12:12:00 BY MR. BRAKEBILL: 12:12:17 Q. Were you part of any conversation between 12:12:17 Santa Cruz representatives and Novell 12:12:23

members of the Santa Cruz negotiating team were 12:14:26 assuming that the UNIX copyrights were being 12:14:28 transferred to Santa Cruz; is that correct? 12:14:31 MR. NORMAND: Objection to form, calls for 12:14:34 speculation. 12:14:37 THE WITNESS: I believe it was the 12:14:37 understanding of SCO and Novell that the copyrights 12:14:38 would follow with the business. 12:14:41 BY MR. BRAKEBILL: 12:14:41 Q. I'm just asking about Santa Cruz right 12:14:44 now, okay? Is it fair to say that it's your view 12:14:46 that other members of the Santa Cruz negotiation 12:14:53 team were assuming that the UNIX copyrights were 12:14:56 being transferred to Santa Cruz? 12:15:00 A. Yes, that's my understanding. 12:15:02 Q. Now, are you aware that Santa Cruz 12:15:20 before -- -- strike that. 12:15:24 At the time of the asset purchase agreement 12:15:25 Santa Cruz had an SVRX license with Novell? 12:15:30 MR. NORMAND: Objection to form. 12:15:36 THE WITNESS: No. 12:15:43 BY MR. BRAKEBILL: 12:15:44 Q. So is it your understanding that prior to 12:15:48 the execution of the asset purchase agreement, Santa 12:15:52 Cruz had no rights relating to UNIX System V? 12:15:56

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 17 of 33

EXHIBIT 24

Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 18 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Page 21 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 22 of 33

EXHIBIT 25

Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 23 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Page 24 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Page 28 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 29 of 33

EXHIBIT 26

Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 30 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Page 31 of 33

Case 2:04-cv-00139-DAK-BCW

Document 260-8

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Page 32 of 33

EXHIBIT 27

Case 2:04-cv-00139-DAK-BCW

Document 260-8

Filed 04/09/2007

Page 33 of 33