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Joe Dunning wrote:
> On 2004-09-06, Jeff Liebermann <jeffl@comix.santa-cruz.ca.us> wrote:
> > On Mon, 06 Sep 2004 18:55:23 GMT, Joe Dunning <joe@dev.null> wrote:
> >
> >>Never mind that IBM had the right to terminate, and Caldera would
(or
> >>should) have known this.
> >
> > True. Let's say we have a joint development contract between you
and
> > me. I'll play IBM and you play Caldera/SCO. We reach an agreement
> > that says either party can bail out at any time without much
notice.
>
> If you agreed to such a contract then, you either:
> 1. Screwed up royally when signing the agreement
> 2. Took on a risk, knowing that you had little choice.

I vote for "screwed up royaly". While the Monterey project certainly
was a juicy plum, I don't think it was "life or death" at the time.

>
>
> > So, the joint development contract starts with you delivering all
your
> > UW7 source code to me. I say thank you and immediately terminate
the
> > contract. That's literally what happened.
> >
> > IBM's excuse was that Caldra bought SCO which changed the picture.
>
> It's not an excuse. The contract has a specific clauses that allowed
IBM
> to terminate if there was a change of control.
>
>
>
> > That makes about as much sense as having a change of your office
> > landlord as justification for me pulling the plug on our joint
> > development contract.
>
> Change of ownership is frequently cause for termination: the company
> could be bought by a competitor.

Caldera as a competitor to IBM ??


>
> >
> >
> > None. It was a badly written contract. SCO has never been known
for
> > scribbling air tight legal documents. The purchase agreement by
> > Caldera was a horrible mess that nobody, including the SEC could
> > understand. It was about as clear as mud. The SEC literally
ordered
> > SCO and Caldera to rewrite most of it so it was intelligible.
> >
> > The real question (from my warped perspective) is whether the
courts
> > will enforce the *INTENT* of the Project Monterey contract.
>
> My opinion is that, since the contract hasvery clear wording allowing

> IBM to terminate in the event of a change of control, IBM's actions
> followed the *INTENT* of the contracrt.

Most of us enter into contracts expecting to get something in return.
What did SCO get?

--
Tony Lawrence
http://aplawrence.com
"Hackneyed opinion and inept technical advice our specialty"

On 2004-09-07, Tony Lawrence <pcunix@gmail.com> wrote:
>
> Joe Dunning wrote:
>>
>> Change of ownership is frequently cause for termination: the company
>> could be bought by a competitor.
>
> Caldera as a competitor to IBM ??

Arguably, yes, UW on Intel as a competitor to AIX on PPC or x86. But
that is not the point. It's frequently difficult to define a competitor
in a way that is suitable for a contract, so contracts just talk about
change of control, they don't attempt to limit to the company being
controlled by a competitor.


>>
>> My opinion is that, since the contract hasvery clear wording allowing
>
>> IBM to terminate in the event of a change of control, IBM's actions
>> followed the *INTENT* of the contracrt.
>
> Most of us enter into contracts expecting to get something in return.
> What did SCO get?

Perhaps nothing, but arguably, IBM entered the contract with the
expectation that they would be dealing with SCO (old-SCO that is) and
not Caldera. So, arguably, it was SCO that did not hold up its end of
the contract.

Anyway, we are discussing our opinions of the expectations people had
going into the contract. The real issue is that IBM had the right to
terminate and so, there is no justification for TSG to sue over
this. People involved may be upset over the way things turned out, but
ultimately, as you agreed, SCO's management screwed up when they agreed
to the terms. I don't think TSG has a valid reason to sue just because
of bad decisions by SCO.

On Tue, 07 Sep 2004 14:51:59 GMT, Joe Dunning <joe@dev.null> wrote:

>On 2004-09-07, Tony Lawrence <pcunix@gmail.com> wrote:

>> Caldera as a competitor to IBM ??

>Arguably, yes, UW on Intel as a competitor to AIX on PPC or x86.

I don't think you read the Project Monterey agreement. SCO owned UW7
prior to the Caldera purchase of SCO. Thus IBM was already dealing
with an alleged competitor. In addition, IBM was agreeing to help
sell this competitors UW7 product as part of Project Monterey.

What Tony is asking how the change of SCO to Caldera ownership could
have presented any form of *ADDITIONAL* competition to IBM. Caldera
was a Linux seller and IBM did not have a Linux product or strategy at
the time. There's no competition, therefore there's no threat, and
therefore should not have pulled the plug merely because of some
alleged competition.

>But
>that is not the point. It's frequently difficult to define a competitor
>in a way that is suitable for a contract, so contracts just talk about
>change of control, they don't attempt to limit to the company being
>controlled by a competitor.

Baloney. One of the major components of any joint development
contracts is to separate the areas of non-involvement, define the
areas of co-operation, and divide the pie in terms of expenses and
profits. This was done fairly well in the Project Monterey agreement.
There's no way the addition of Linux to the puzzle could have
constituted much of a change of competitive position for either party
as defined in the agreement.

>Perhaps nothing, but arguably, IBM entered the contract with the
>expectation that they would be dealing with SCO (old-SCO that is) and
>not Caldera. So, arguably, it was SCO that did not hold up its end of
>the contract.

Got it. It's the people with whom your dealing that are important,
not the substance or intent of the agreement. If I don't like your
face, I won't do business with you. Swell.

Did you notice that only IBM had the contractual ability to pull out
unilaterally and without much justification or compensation?
Dissolution clauses are usually very detailed. I can think if several
reasons why SCO had allowed this to happen. The one I don't like to
think about is that SCO may not have expected the company to survive
the length of the agreement and therefore didn't care.

>Anyway, we are discussing our opinions of the expectations people had
>going into the contract. The real issue is that IBM had the right to
>terminate and so, there is no justification for TSG to sue over
>this. People involved may be upset over the way things turned out, but
>ultimately, as you agreed, SCO's management screwed up when they agreed
>to the terms. I don't think TSG has a valid reason to sue just because
>of bad decisions by SCO.

I just really hate to agree with you, but I think you're absolutely
correct. This shouldn't have happened. Desperation makes people and
companies do desperate things. We would all be better off if none of
this had happened.


--
# Jeff Liebermann 150 Felker St #D Santa Cruz CA 95060
# 831.336.2558 voice http://www.LearnByDestroying.com
# jeffl@comix.santa-cruz.ca.us
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