SCO Grp v. Novell Inc

Filing 347

DECLARATION of Edward Normand re 346 Reply Memorandum/Reply to Response to Motion, filed by SCO Group. (Attachments: # 1 Exhibit 1-2# 2 Exhibit 3# 3 Exhibit 4-12# 4 Exhibit 13-14# 5 Exhibit 15 Part 1# 6 Exhibit 15 Part 2# 7 Exhibit 15 Part 3# 8 Exhibit 15 Part 4# 9 Exhibit 15 Part 5# 10 Exhibit 16-19# 11 Exhibit 20-26# 12 Exhibit 27-34)(Normand, Edward)

SCO Grp v. Novell Inc

Doc. 347 Att. 4

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

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EXHIBIT 13

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH --oOo--

THE SCO GROUP, INC., Plaintiff/Counterclaim Defendant, vs. NOVELL, INC., Defendant/Counterclaim Plaintiff _____________________________________/ No. 2:04CV00139

Videotaped Deposition of STEVEN M. SABBATH _______________________ Monday, February 12, 2007

Reported by: Leslie Rockwood CSR No. 3462 Job No. 191637

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A. Well, their chief negotiator, their counterpart to our Geoff and Jim, was a fellow named Ed Chatlos, who was stationed in New Jersey, worked for Novell out of New Jersey. He was their project manager. There were a few others from Utah that I met from time to time. I can't recall their names or their titles. To some extent, David Bradford, their general counsel, was involved. He did appear in California at least once, that I can recall and worked on the deal with us. And then, of course, there were their Wilson Sonsini outside counsel. Q. Can you recall any of the attorneys from Wilson that you dealt with? A. Well, Tor Braham was their lead. He was Ed Leonard's counterpart. Tor Braham, and I think his number 2 would have Aaron Alter, who would have been Scott Lester's counterpart on the Wilson side. Q. Did you have occasion during the negotiations of this potential transaction to review any draft agreements embodying the transaction? A. Well, the asset purchase agreement, certainly. There were a lot of agreements and exhibits and schedules, and I can't tell you I reviewed every single one. That may not have been possible for anybody to do. But the asset purchase agreement, certainly.

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Q. The agreement says, "On the terms and subject to the conditions set forth in this agreement, seller will sell, convey, transfer, assign and deliver to buyer, and buyer will purchase and acquire from seller on the closing date as defined in Section 1.7 all of sellers right, title, and interest in and to the assets and properties of seller relating to the business, collectively the assets, identified on Schedule 1.1(a) hereto. Notwithstanding the foregoing, the assets to be so purchased shall not include those assets, the excluded assets set forth on Schedule 1.1(b)." Do you see that language? A. I do, yes. Q. Does this language refresh your recollection at all as to the nature of the business that was being sold under the APA? A. Well, I mean, as I said before, it was the entire UNIX business that Novell had was going to Santa Cruz Operation. Q. Was it ever your understanding during the negotiations leading up to the APA or thereafter that copyrights in the UNIX business were being excluded from the assets transfer? A. No, copyrights were going with the assets. Q. I'm turning, Mr. Sabbath, to the schedule

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Q. I'm handing you, Mr. Sabbath, what's previously been marked as Exhibit 1 titled "Asset Purchase Agreement By and Between The Santa Cruz Operation, Inc., and Novell, Inc.," dated as of September 19th, 1995. Do you recognize the document? A. I do, yes. Q. I wanted to ask you about some language in this agreement, Mr. Sabbath. I'm looking at the page ending with the Bates Number 900 on the bottom right. A. Okay. Q. If you look at paragraph A, in the recitals? A. Uh-huh. Q. It says, "Sellers engage in the business of developing a line of software products currently known as UNIX and UnixWare, the sale of binary and source code licenses to various versions of UNIX and UnixWare, the support of such products and the sale of other products which are directly related to UNIX and UnixWare, collectively, the business." Do you see that language? A. I do. Q. And then if you look down on that same page at Section 1.1(a)? A. Uh-huh.

referred to in that Section 1.1(a), and that begins on page Bates Number ending 950. A. 950. Okay. Q. Bates Number ending 950 is titled "Schedule 1.1(a), Assets." A. Uh-huh. Q. And Roman Numeral I -- let me just read it for the record: "All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare including revisions and updates and process" -A. Uh-huh. Q. -- "and all technical design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare, such assets to include without limitation the following." Do you see that language? A. I do. Q. Do you recall reviewing that language at the

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copyrights, et cetera, went from Novell to Santa Cruz Operation when Novell sold the UNIX business to Santa Cruz Operation. Q. Paragraph A says: "With respect to Schedule 1.1(b) of the agreement entitled 'Excluded Assets,' Section V, subsection A shall be revised to read: 'All copyrights and trademarks except for the copyrights and trademarks owned by Novell as of the date of the agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." A. Uh-huh. Q. "However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks." Do you see that language? A. I do, yes. Q. In your view, as of the execution of the APA, what copyrights were required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies? MR. JACOBS: Objection. Vague and ambiguous, calls for speculation, lacks foundation, ambiguous as to time. THE WITNESS: Well, you would need all of the

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the execution of the APA, Santa Cruz had occasion to enter into source code licenses with any third parties in which Santa Cruz licensed UNIX or UnixWare source code to those third parties? A. Well, I mean, we routinely licensed source code to customers who needed it for development purposes, for supporting their own customer base, what have you. Q. And at the time, did you have a view as to what gave Santa Cruz the right to enter into such licenses? A. We owned the technology, you know, lock, stock, and barrel. Q. Do you know whether at any time after the execution of the APA, Novell entered into any UNIX or UnixWare licenses with any third parties in which Novell licensed UNIX or UnixWare source code to that third party? A. Well, are you referring to the IBM issue? Q. No. A. "No"? Other than that, I don't recall any such case. Q. And I understood your question to mean to refer to the IBM issue that resulted in the paragraph B, C, and D of Amendment Number 2? A. That's correct.

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copyrights. Q. BY MR. NORMAND: And why do you say that? A. To do the future development, you would need the copyrights, to license the technology the way you saw fit, you would need the copyrights. My gosh, if you didn't own the copyrights, how could you even go after somebody that's pirating your software? How could you enforce your rights in the technology? So you would need all of the copyrights and binaries and source code. Q. At any time after the execution of Amendment Number 2, did Santa Cruz ever have occasion to ask Novell to transfer any UNIX or UnixWare copyrights to Santa Cruz? A. Not that I recall. Q. Did you ever have an understanding during your tenure at Santa Cruz that Santa Cruz was obligated to ask Novell to transfer particular UNIX and UnixWare copyrights? A. No, no. Q. No one from Santa Cruz ever told you that that was the process in place that needed to be pursued with Novell? MR. JACOBS: Objection. Leading. THE WITNESS: I don't recall that. Q. BY MR. NORMAND: Do you know whether after

Q. Did Santa Cruz have occasion to enter into what's been described as Project Monterey with IBM at some point in the late 1990s? A. Yes, that's right. Q. And I guess at a high level, what was your understanding of Project Monterey? MR. JACOBS: Objection. Can we go off the record for a second because I think you and I can do something more efficiently. THE VIDEOGRAPHER: We are now going off the record. The time is 10:20 a.m. (Recess.) THE VIDEOGRAPHER: We are now back on the video record. The time is 10:37 a.m. Q. BY MR. NORMAND: Before the break, Mr. Sabbath, I had asked you what your understanding was at a high level of what Project Monterey is. A. Yeah, I can't recall the timing, but Project Monterey was a -- was to be a joint venture between Santa Cruz Operation and IBM to jointly develop future UNIX products and to jointly market them globally. Santa Cruz Operation, primarily through the distribution channels, to small and medium business, and IBM primarily to big companies. I guess Santa Cruz Operation also to other

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Q. How does that language comport with your understanding today regarding the meaning and the parties' intent under Amendment Number 2? A. Well, the last sentence here, I don't know whether they ever executed an instrument, I don't -- I have no idea. I don't know why such an instrument would have been required. The APA states that it transfers. Going back up into this paragraph 26, actually, they may have identified the copyrights and trademarks. I'm not 100 percent sure. But there may have been some exhibit in the APA where they actually listed the copyrights and trademarks. But I mean, you know, keep in mind, the trademark UNIX was actually -- had been sold by Novell to X Open. So that trademark, the language here is a little confusing and certainly isn't 100 percent accurate. Q. When you say the language here, do you mean the language -A. In this paragraph 26, I'm sorry. Q. -- of your declaration? Is it your view that Amendment Number 2 created a process by which Santa Cruz would go to Novell and specify the copyrights that Santa Cruz believed was required to exercise its rights with respect to UNIX and UnixWare technologies?

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agreement, it was -- I'm not sure exactly what that transaction between Novell and X Open was all about, but we were kind of midstream in some transition period of that mark moving over to X Open. That's the only IP I can think of that was in kind of limbo. Q. To the extent this declaration could be read to suggest your view that Novell had retained the UNIX and UnixWare copyrights, is that an accurate reflection of your understanding of that issue? MR. JACOBS: Object to the form of the question. THE WITNESS: My understanding is that they did not retain any copyrights pertaining to the UNIX technology. Q. BY MR. NORMAND: As you sit here today, are you satisfied that this declaration accurately reflects your views regarding the issues we've discussed? A. Well, I mean, this declaration was a quick and dirty, you know, done before the holidays over the phone with an associate in -- somewhere in the East Coast and me. And, I mean, it's, you know, close enough for government work, if you want to use that phrase, but it's a hundred percent accurate, no, not at all. Q. Do you think the views that you've communicated on these issues today are a reflection of

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A. No, no. Q. If you look at paragraph 29 of your declaration, you say: "It is my understanding based upon my review of plaintiff's Amended Complaint that plaintiff claims to have acquired all right, title, and interest in and to UNIX System V operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX System V and claims against all parties breaching such agreements. I understand that plaintiff also claims to control the right of all UNIX vendors to use and distribute UNIX System V. I believe that these claims are incorrect. As described above in relation to the related agreements and Amendment Number 2, Novell retained certain rights under the UNIX System V licensing agreements as well as certain UNIX System V intellectual property as described above." Do you see that language? A. I do. Q. How does that language comport with your view today as to what, if any, UNIX System V intellectual property rights Novell retained under the APA? A. Well, the only thing I can think of is that UNIX trademark, that bizarre transaction where it went to X Open, and at the time we did the asset purchase

your having spent more time thinking about the issues addressed in this declaration? A. Well, not only thinking about the issues, but actually reading the documents. MR. NORMAND: Michael, I'm going to take a break now, and it may be that I'm done, but if not, I'll have maybe five or ten minutes. MR. JACOBS: Okay. THE VIDEOGRAPHER: We are now going off the video record. The time is 1:51 p.m. (Recess.) THE VIDEOGRAPHER: We are now back on the video record. The time is 2:09 p.m. Q. BY MR. NORMAND: Good afternoon, Mr. Sabbath. Do you recall from your participation in the negotiation of the APA whether the issue of patents arose? A. It did, yes. Q. And in what way did it arise? A. Somewhere in the negotiation, I'm pretty sure it was Tor Braham, the Wilson Sonsini outside counsel, told us that there were no patents that we were to receive as part of the assets. Q. And did you understand why Novell was making that representation? A. Well, we then tried to find out, you know,

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A. That's correct. Q. It's not hard to say "all" or "the" to convey that intent; right? MR. NORMAND: Objection to form. Q. BY MR. JACOBS: Right? A. I suppose so. Q. And if you look at Amendment Number 2, it doesn't say that, does it? MR. NORMAND: Objection to form. THE WITNESS: If you're saying the word "all" isn't there, you're absolutely right. Q. BY MR. JACOBS: And a simple expression like "the UNIX copyrights" isn't there, either? MR. NORMAND: Objection to form. THE WITNESS: The UNIX copyrights. Q. BY MR. JACOBS: I'm sorry, looking at Exhibit Number 2, sir. A. Oh, with respect -- well, it says "all copyrights and trademarks." Q. That's the exclusionary part. A. Oh, let me read it. Oh, except for the copyrights and trademarks covered by Novell -- yeah, it doesn't say "except for all the copyrights and trademarks." True. Q. And when it says the copyrights necessary to

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Q. BY MR. JACOBS: SCO wasn't going to enter into new SVRX licenses; correct? A. Right. We didn't want to do that, anyway. Q. So you didn't need the copyright necessary to enter into new SVRX licenses? MR. NORMAND: Objection to form. THE WITNESS: But we did need to protect the technology. We didn't want somebody to be able to go off and pirate it, for example, so we needed the copyright in order to defend the property. Q. BY MR. JACOBS: Did you ever take such a step while you were at Santa Cruz? A. Well, with respect to SVRX? Q. Correct. A. I don't recall that. Q. And with respect to the code that you developed at UnixWare, we established -- the UnixWare code that Santa Cruz developed, we established earlier that you would own that by virtue of the operation of copyright law; correct? MR. NORMAND: Objection to form. THE WITNESS: Yeah, it may not be that simple, but if what you're getting at is anything we developed, we would hold a copyright in, true, but there might be some other older UNIX code in it, okay? Which

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carry on the business -- do you want to read that expression again? A. Okay. "Except for the copyrights and trademarks owned by Novell as of the date of the agreement, required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies." Q. So it's -- refers to the exercise of rights; correct? MR. NORMAND: Objection. Form. THE WITNESS: Yes. Q. BY MR. JACOBS: And up until the time that you left Santa Cruz/Tarantella, what copyright rights in UNIX did Santa Cruz need in order to carry on the business contemplated by the Asset Purchase Agreement? MR. NORMAND: Objection. Asked and answered. THE WITNESS: Well, once we sold the business to Caldera, now The SCO Group, and became Tarantella, we didn't need those rights. Up until then, you would need all rights to run your business. You don't know what you're going to be doing day-to-day, what kinds of situations you'll find yourself in with potential partners, with potential customers. So you want all rights to do anything that you deem fit with the technology.

could be a problem if you don't own the copyright to it. Q. BY MR. JACOBS: Well, the specific right you need in order to effectuate that, based on your knowledge and experience in the software industry, is the right to create a derivative work; correct? MR. NORMAND: Object to form. THE WITNESS: Well, you definitely need that, but you can do that as a licensee. Q. BY MR. JACOBS: In fact, what you really need from Novell is an explicit or implied license in order to evolve the UnixWare product as contemplated by the Asset Purchase Agreement; correct? MR. NORMAND: Objection to the form. THE WITNESS: That would have been a different form of transaction. It's not -- you know, we were already a licensee. It's not what we wanted to do. We wanted to own the technology. Q. BY MR. JACOBS: But in order to carry out the business contemplated by the Asset Purchase Agreement, we've established that that business did not include new SVRX licenses; correct? MR. NORMAND: Objection to form. THE WITNESS: That's right. Q. BY MR. JACOBS: It did include creating this unified UNIX, and more particularly, the Eiger and UNIX

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leave the deposition open. From our standpoint, until that's resolved. I hope we won't need to get further in touch with you. THE WITNESS: Okay. I have no idea what you're talking about, and that's probably a good thing. MR. NORMAND: I have a few questions. FURTHER EXAMINATION BY MR. NORMAND Q. With respect to Exhibit 49, Mr. Sabbath? A. Uh-huh. Q. I take it that in contacting Mr. Swartz, you're working on the assumption that you had the right to enforce UNIX copyrights. Is that a fair statement? MR. JACOBS: Objection. Leading. THE WITNESS: Oh, certainly. Q. BY MR. NORMAND: Was there ever a time at your tenure at Santa Cruz when you believe you did not, meaning Santa Cruz, own the UNIX or UnixWare copyrights? A. I don't recall such a time. Q. Do you recall anyone at Santa Cruz suggesting to you that Santa Cruz did not own the UNIX or UnixWare copyrights during your tenure there? A. I don't recall that. Q. Can you recall anyone from Novell suggesting to you that Santa Cruz didn't own the UNIX or UnixWare copyrights during your tenure at Santa Cruz?

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code? MR. JACOBS: Objection. Leading. THE WITNESS: You know, I'm not technical enough to know if that's the case. I think, but I don't know. Q. BY MR. NORMAND: Would that statement be true if SVRX source code was part of UNIX and UnixWare source code? A. If that were the case, then it's probably so that we would have to modify, reproduce, so forth, the SVRX code as well. Q. Is it your view that under the Asset Purchase Agreement, Santa Cruz licensed from Novell the UNIX and UnixWare source code? A. No. I mean, the purpose of the Asset Purchase Agreement was that we would acquire, we would buy and own all of the UNIX business, all of the UNIX technology. We were already a licensee. MR. JACOBS: Objection. Move to strike. Q. BY MR. NORMAND: Mr. Jacobs asked you earlier about paragraph A of Amendment Number 2, and he used the phrase "nunc pro tunc." Do you remember that? A. Vaguely. Q. "Nunc pro tunc" is Latin for "now for then"?

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A. I don't recall that. Q. If you look at Amendment Number 2, the language in paragraph A, you've spoken now with both me and Mr. Jacobs regarding this language copyrighted is a trademark owned by Novell at the date of the agreement required from SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. Now, did you have any understanding at the time as to whether SVRX source code was part of UNIX and UnixWare? A. There was an assumption that SVRX was part of UNIX, sure. UNIX would have been, you know, all releases, all forms of the UNIX operating system. Q. Was it your understanding under the APA that Santa Cruz had the right to develop the UnixWare business? A. Well, certainly that was the primary intent. Q. Was it your understanding at the time of the execution of the APA that in order to develop the UnixWare business, Santa Cruz would have to copy and reproduce UnixWare source code? A. Sure. And modify it, certainly. Q. Does it follow that in order to develop the UnixWare business, it was your understanding that Santa Cruz would need to copy and reproduce the SVRX source

A. Uh-huh. Q. Did you understand paragraph A of the Amendment 2 to amend the excluded asset schedule of the APA? A. No, I took this as a clarification, not actually an amendment. And whether it was effective way back when, or 16 October, '96, to be honest with you, I failed to see any significance. But maybe I'm missing some fine point that is a contention between you two. Q. Well, to the extent paragraph A clarifies a schedule to the APA -A. Uh-huh. Q. -- is it fair to say that Amendment Number 2, paragraph A, was effective as of the execution of the APA? MR. JACOBS: Objection. Leading. THE WITNESS: And I can only say I suppose so. Q. BY MR. NORMAND: And why is that? A. Because I don't really speak very good Latin. No, what I meant is I don't understand the rules pertaining to that legal principle. Q. There is language in paragraph A of Amendment Number 2 that says "With respect to Schedule 1.1(d) of the agreement, titled 'Excluded Assets,' Section 5,

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subsection A shall be revised to read." Do you see that language? A. Yes, I do. Q. To the extent that the excluded asset schedule of Amendment A was revised, does that affect your view one way or the other as to whether copyrights were deemed transferred under this Amendment Number 2 as of the time of the APA? A. No. I mean, you know, again, I was told -we understood this to be a clarification, not a revision. Q. Mr. Jacobs asked you about Scott Lester's involvement in certain negotiations -A. Yeah. Q. -- under the APA. Do you recall that question? A. Yes. Q. Was Mr. Lester part of any negotiations in which outside counsel for the other side was not involved? A. I suspect not. Nor do I think Ed Leonard was probably meeting with the other side without their outside counsel. Q. I wanted to direct your attention to Exhibit 46, which was one of the email chains. A. Okay. Got it.

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of SCO that the execution of the amendment by Novell constitutes a breach of the Asset Purchase Agreement and represents an invalid exercise of Novell's authority. The amendment purports to grant certain rights to IBM and to modify preexisting license agreements in a manner that contravenes the provisions of the asset purchase agreement and potentially causes substantial harm and damages to SCO." Do you see that language? A. Yes, I do. Q. Is it your view that in writing this letter, Mr. Lester meant to refer only to Section 4.16(c) of the APA? MR. JACOBS: Objection. Calls for speculation, lacks foundation. THE WITNESS: And I have no idea. Q. BY MR. NORMAND: Do you recall you had a series of questions and answers with Mr. Jacobs regarding Novell's rights to enter into buyouts on behalf of Santa Cruz in 1996? Do you recall those questions and answers? A. Vaguely. Q. And do you recall my asking you this morning about Amendment Number X? A. What about Amendment Number X? Q. Do you recall me asking you questions about

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Q. Do you see on the first page of the document in the email to John Maciaszek from Scott McGregor beginning, "John, Alok and I spoke about this, and here's the status"? First page of the document? A. Oh. Okay. Yeah. Q. And the language says: Alok spoke with Frankenberg last Friday, and Novell thinks they have the right to do this. On the other hand, Geoff Seabrook, who negotiated the deal from our end, is adamant that they don't or at least the intent is that they don't." Do you see that language? A. I do. Q. Do you know whether Mr. Seabrook was relying on Section 4.16(c) in reaching the conclusion that's attributed to him here? A. I have no idea. You know, when I saw this email thread today, I had no recollection whatsoever of it. Q. I'm handing you, Mr. Sabbath, what's been marked as Exhibit 1050, a letter dated May 1st, 1996 under Brobeck, Phleger & Harrison letterhead to Novell, attention David Bradford, signed by Scott Lester? A. Yes. Q. In which Mr. Lester states in the first page, paragraph 3: "This letter constitutes notice on behalf

it? A. Oh, sure. Sure. Q. Is it your view that following the execution of Amendment Number X, Novell was entitled to enter into buyouts unilaterally on behalf of Santa Cruz? MR. JACOBS: Object to the form of the question. THE WITNESS: Well, Amendment Number X was the three-way between IBM, Novell, and SCO. There was another amendment -- well, Amendment Number 2, actually -Q. BY MR. NORMAND: It's really more a question to time. Amendment Number 2 and Amendment Number X, following the execution of those documents, do you have a view as to whether Novell was entitled to enter into buyouts unilaterally for Santa Cruz? A. I do have a view. I think that really nailed down the clarification that Novell would not have the ability to do a buyout on our behalf or on anybody's behalf. Q. Do you have any understanding, Mr. Sabbath, as to whether following the execution of the APA, Santa Cruz had occasion to enter into UnixWare licenses in which it licensed SVRX source code to a third party? MR. JACOBS: Objection. Asked and answered.

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THE WITNESS: I don't know. Q. BY MR. NORMAND: Mr. Jacobs directed you to Section 2.10 of the Asset Purchase Agreement. A. 2.10 of technology? Q. Correct. And that's the section in which Novell as the seller makes certain representations regarding a list of seller intellectual property rights? A. Yes. Q. Now, do you have any explanation as to why copyrights would have been included in those seller intellectual property rights, and representations would have been made about such copyrights in Section 2.10 if Novell were not transferring those copyrights? A. No, I don't know why it would be there if that were not the case. Q. Do you have any reason to believe that you ever told Allison Lisbonne or Allison Amadia that UNIX or UnixWare copyrights had not been transferred under the APA? A. I sure don't recall that. Q. Do you have any reason to believe you would have made such a statement? A. Well, I mean, it could be that she brought it up or -- I mean, not me, but her. I don't recall that. It could be somebody brought up the fact that maybe there

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Q. If you look at Schedule 1.1(a) of the APA. That's the Bates number ending 950? A. Okay. Q. Paragraph 1, among the assets transferred was the UNIX and UnixWare source code; correct? A. Right. Right. Q. And if you see at the top of the Amendment Number 2, the phrase "licensed technology"? A. I'm sorry, where is that? Q. At the top of page 2 of Amendment Number 2? A. Other technology? Yes. Q. I'm sorry, licensed technology. A. Like what page of the footer on the bottom right? Q. The top of page 2 of the Technology License Agreement? A. Oh, I'm looking at the wrong agreement. License technology, right. Q. And if you look in paragraph Roman Numeral II A 2 of the Technology License Agreement? A. Subject to paragraphs B and C of this Section 2? Q. Novell was given with the consent of SCO a non-exclusive, non-terminable, worldwide fee-free license to use, reproduce, and modify and authorize its customers

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needed to be a clarification on the language in the APA. I don't recall that. Q. Was it ever your understanding after the execution of the APA that Novell had retained UNIX or UnixWare copyrights? A. No. Q. Mr. Jacobs pointed you in the technology license agreement to the top of page 2 -A. Top of page 2. Q. -- which certain definitions in the APA are incorporated. A. Yes. Q. And including the word "assets"? A. Okay. I see assets. Q. I take it from our discussion this morning that it was your understanding that the UNIX and UnixWare licenses were among the assets transferred, is that fair to say, under the APA? A. The licenses, what licenses specifically? Q. That UNIX and UnixWare licenses were among the assets transferred under the APA? A. You mean the licenses that Novell had entered into with its customers? Q. Correct. A. Yes, of course.

to use, reproduce, and modify licensed technology." Do you see that? A. I do. Q. Did you understand such licensed technology to include the UNIX and UnixWare source code? A. No. Q. Well, let's look at the definition of licensed technology in the APA. MR. JACOBS: 1.6. MR. NORMAND: I'm sorry? MR. JACOBS: 1.6. Q. BY MR. NORMAND: If you look at Section 1.6 of the APA, Mr. Sabbath. A. I'm sorry, Section 1.6? License back of assets, okay. Q. It says: "Concurrent with the closing, buyer shall execute a license agreement under which it shall grant the seller a royalty-free perpetual worldwide license to all of the technology included in the assets." A. Uh-huh. Q. Do you remember we looked at the definition of "assets"? A. Uh-huh. Q. It is your understanding that UNIX and UnixWare source code were among the assets?

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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

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REPORTED BY LAWRENCE PAUL NELSON, CSR 12144 JOB NO 191725

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Q. Including UNIX copyrights; correct? 10:33:13 A. Including the UNIX copyrights. 10:33:16 Q. And that particular paragraph Santa Cruz 10:33:18 did not claim to own UNIX copyrights; correct? 10:33:22 MR. NORMAND: Objection to form, asked and 10:33:26 answered. 10:33:29 THE WITNESS: Yes. 10:33:29 BY MR. BRAKEBILL: 10:33:37 Q. Yes, they did not claim to own the UNIX 10:33:37 copyrights? 10:33:40 A. That's correct. 10:33:41 Q. Do you know when this Santa Cruz-Caldera 10:33:43 deal closed? 10:33:49 MR. NORMAND: Objection to form. 10:33:56 BY MR. BRAKEBILL: 10:33:57 Q. Approximately. 10:33:58 A. I do not recall when it closed, sometime 10:34:07 late in 2003, I believe. 10:34:17 Q. I'll represent for the record, and Ted, 10:34:18 correct me if need be, but I'll represent for the 10:34:21 record that it closed in 2001. 10:34:24 A. I'm sorry. What did I just say? 10:34:27 Q. 2003. 10:34:28 A. Oh, I'm sorry. 10:34:30 Q. Just in case it impacts the time frame for 10:34:31

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Operation at the time of the Novell-Santa Cruz deal 10:36:42 had been sold off to other entities? 10:36:45 MR. NORMAND: Objection to form. 10:36:49 THE WITNESS: I don't know the particulars 10:36:53 of the transaction with Sun, so I can't answer that 10:36:54 question. 10:36:59 BY MR. BRAKEBILL: 10:37:04 Q. As you sit here today do you have any 10:37:05 understanding as to whether or not any Tarantella 10:37:06 business was not purchased by Sun Microsystems in 10:37:08 2005? 10:37:13 A. No, I have no understanding of that. 10:37:13 Q. Did Mr. Sabbath stay at Tarantella after 10:37:17 the Santa Cruz-Caldera transaction? 10:37:22 A. Yes. 10:37:24 Q. Do you know how long he stayed at 10:37:24 Tarantella? 10:37:27 A. He stayed until December of 2003, I 10:37:37 believe. 10:37:37 Q. Do you know what he did upon his departure 10:37:42 from Tarantella? 10:37:44 A. I believe he's happily retired. 10:37:48 Q. Now, you were involved in 2001 in 10:37:55 corresponding with IBM concerning the Caldera 10:38:41 acquisition of Santa Cruz assets; is that right? 10:38:47

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questions. 10:34:34 A. Yes, yes. 10:34:34 Q. Does that sound correct to you that the 10:34:35 transaction closed in approximately 2001? 10:34:37 A. Yeah, February or March, I believe, now 10:34:42 that I think about it. 10:34:46 Q. Did you stay with Santa Cruz after the 10:34:54 Santa Cruz-Caldera transaction closed? 10:34:59 A. Yes. 10:35:01 Q. And on or around the closing of the Santa 10:35:09 Cruz-Caldera transaction in 2001 did the remaining 10:35:15 business become Tarantella? 10:35:20 A. Yes. 10:35:26 Q. And so you stayed in Tarantella's legal 10:35:27 department beginning in March or so of 2001? 10:35:34 A. Yes. 10:35:36 Q. And then you stayed in Tarantella's legal 10:35:38 department until approximately August of 2004? 10:35:42 A. Yes. 10:35:46 Q. Are you aware that in 2005 Tarantella was 10:35:56 purchased by Sun Microsystems? 10:36:01 A. Yes. 10:36:03 Q. So is it fair to say that at the time of 10:36:04 the Sun purchase of Tarantella in 2005 that all of 10:36:31 the assets comprising the original Santa Cruz 10:36:38

MR. NORMAND: Objection to form, 10:38:51 foundation. 10:38:52 THE WITNESS: I don't know. 10:38:58 BY MR. BRAKEBILL: 10:39:09 Q. As you sit here today you don't recall one 10:39:09 way or another whether you were involved in 10:39:10 correspondence with IBM in 2001 concerning Caldera's 10:39:13 acquisition of Santa Cruz assets? 10:39:20 A. I believe that I sent a letter to them. I 10:39:23 may have had phone conversations. I don't remember 10:39:28 the particulars. 10:39:32 MR. BRAKEBILL: Are you going to want to 10:40:48 take a break soon? I can keep going. This is a 10:40:50 convenient spot. Do you want to keep going? 10:40:53 THE WITNESS: Yeah, I can go a little 10:40:56 longer. 10:40:58 MR. BRAKEBILL: All right. 10:40:59 BY MR. BRAKEBILL: 10:41:02 Q. Did you have a role in the negotiation of 10:41:17 the asset purchase agreement between Novell and 10:41:22 Santa Cruz in 1995? 10:41:25 A. Yes. 10:41:27 Q. Well, how would you characterize that role 10:41:28 as you sit here today? 10:41:34 A. I participated in meetings, negotiations, 10:41:36

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a review of the asset purchase agreement, and 10:41:43 possibly preparation of some of the schedules. 10:41:50 Q. Who was part of the legal team, in-house 10:42:07 legal team at Santa Cruz participating in the 10:42:10 negotiation of the APA? 10:42:15 A. Primarily Steve Sabbath and myself. 10:42:17 Q. I take it Steve Sabbath was the lead 10:42:22 in-house lawyer for Santa Cruz on the APA 10:42:26 transaction? 10:42:29 A. Yes, I believe he was the only lawyer at 10:42:31 the Santa Cruz Operation at that time. 10:42:34 Q. Now, you mentioned that you believe you 10:42:47 were part of meetings concerning the asset purchase 10:42:50 agreement. What meetings in particular do you have 10:42:54 in mind? 10:42:57 A. We had internal meetings with Geoff 10:42:59 Seabrook and Jim Wilt, who were the lead business 10:43:07 negotiators as well as meetings with Doug Michaels 10:43:13 and Aluc Mohan, as well as meetings with Novell. Ed 10:43:20 Chatlos I remember in particular meetings with Ed. 10:43:27 Q. As you sit here today what specific 10:43:31 meetings do you recall having with Novell prior to 10:43:34 the execution of the asset purchase agreement on 10:43:36 September 19th, 1995? 10:43:40 MR. NORMAND: Objection to form, calls for 10:43:43

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prior to the execution of the asset purchase 10:45:16 agreement? 10:45:18 A. I can't be certain of who -- there are 10:45:27 names that are familiar to me but I can't be certain 10:45:32 who came to Santa Cruz and who didn't. Ed is the 10:45:35 person who sticks out most clearly in my mind. 10:45:38 Q. You reference, if you will, two sets of 10:45:42 meetings, some meetings in Santa Cruz that you had 10:45:46 with Novell and some meetings that you had with 10:45:48 Novell in New Jersey. Is that fair? 10:45:51 A. Yes. 10:45:53 Q. Did you have any meetings with Novell 10:45:54 aside from those in Santa Cruz and those in New 10:45:56 Jersey? 10:45:59 A. Yes. While we were getting the asset 10:45:59 purchase agreement we had several meetings at -- I 10:46:03 believe most of the meetings were at the Brobeck law 10:46:11 firm and they might have been at Wilson Sonsini's 10:46:15 facilities, but we had several meetings at the 10:46:21 lawyers who were representing the two parties. 10:46:25 Q. Let's talk about the Santa Cruz meetings 10:46:29 with Novell first. Is it fair to say you don't 10:46:33 recall anyone in particular from Novell that was 10:46:36 part of those meetings aside from Ed Chatlos? 10:46:38 A. I don't remember anything in particular. 10:46:42

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a narrative. 10:43:48 THE WITNESS: I'm sorry. Can you repeat 10:43:48 the question? 10:43:49 BY MR. BRAKEBILL: 10:43:50 Q. You said you recall having meetings with 10:43:50 Novell prior to the execution of the asset purchase 10:43:52 agreement? 10:43:56 A. Yes. 10:43:57 MR. NORMAND: Are you transcribing these 10:43:58 objections or do I need to speak louder? 10:43:58 THE COURT REPORTER: No, I'm getting it. 10:43:58 MR. NORMAND: Okay. 10:44:11 BY MR. BRAKEBILL: 10:44:11 Q. When's the first meeting that you recall 10:44:12 having with Novell prior to the execution of the 10:44:14 asset purchase agreement? 10:44:17 A. I don't remember the dates. I remember Ed 10:44:22 Chatlos, and there may have been other employees 10:44:30 from Novell that accompanied him coming to Santa 10:44:33 Cruz and having meetings in Santa Cruz as well as 10:44:38 Steve and myself going to New Jersey on a couple of 10:44:42 occasions and meeting to discuss the transaction, 10:44:48 the contemplated transaction. 10:44:52 Q. Aside from Ed Chatlos, who from Novell do 10:45:02 you recall meeting with from Novell in Santa Cruz 10:45:07

I remember there were other people from Novell but I 10:46:45 couldn't say with certainty as to who they were. 10:46:49 Q. Do you recall when these meeting took 10:46:52 place in Santa Cruz? 10:46:54 A. No, I can't recall the dates. 10:47:00 Q. Do you recall that those meetings were 10:47:04 prior to the execution of the original asset 10:47:07 purchase agreement? 10:47:10 A. Yes. 10:47:11 Q. You also mentioned some meetings in New 10:47:13 Jersey with Novell? I believe you said you and 10:47:17 Steve Sabbath went to New Jersey? 10:47:20 A. Yes. 10:47:22 Q. How many meetings do you recall having 10:47:22 with people from Novell in New Jersey prior to the 10:47:25 execution of the asset purchase agreement? 10:47:28 A. There were numerous meetings over a couple 10:47:35 days, a few days. 10:47:42 Q. Who do you recall meeting with from 10:47:44 Novell? 10:47:46 A. I primarily remember meeting with Ed 10:47:48 Chatlos. Burt Levine may have been involved in 10:47:59 meetings. Ty Mattingly may have been involved in 10:48:03 meetings. I remember speaking with him on the phone 10:48:10 but I can't be certain whether or not he was 10:48:13

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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

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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,