Case 07-11337-BLS Doc 1510 Filed 09/09/21 Page 1 of 22

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re: Chapter 7

TSG GROUP, INC., et al. Case No. 07-11337 (BLS)

Debtors. Related D.I. 1509

DECLARATION OF SEAN SNYDER

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I, Sean Snyder, declare as follows:

1. I am the CEO of Xinuos, Inc. (“Xinuos”), a role that I have held since 2014.

2. Through my knowledge of and experience in all aspects of Xinuos’ business,

including its inception and its initial purchase of assets, as well as my knowledge of and

experience in the operating system market, including its history and development, I am

personally familiar with the facts set forth in this Declaration and know them to be true based

upon my own knowledge or information available to me, except where I have otherwise

indicated.

3. I submit this Declaration in support of the Objection of Xinuos, Inc. to the Motion

of Chapter 7 Trustee for Entry of an Order Approving the Settlement and Release Agreement by

and Between the Trustee and International Business Machines Corporation (“IBM”).

The UNIX Operating System & The SCO Group, Inc.

4. In the 1970’s, AT&T developed the computer operating system known as UNIX.

UNIX was (and remains) highly valuable to large enterprise customers due to its reliability and

scalability.

5. Many software distribution vendors, including IBM with regards to its AIX

operating system, entered into licensing agreements with AT&T to use UNIX in their own

proprietary operating systems.

6. In or around 1993, AT&T sold all right, title, and interest in UNIX to Novell, Inc.

(“Novell”), including all right, title, and interest in any UNIX licensing agreements. Novell

developed a UNIX operating system product known as UnixWare.

7. On or about September 19, 1995, SCO entered into an asset purchase agreement

with Novell relating to the UNIX business, products and source code that Novell had purchased

from AT&T or which Novell had otherwise developed (the “Novell Agreement”). SCO believed
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that it obtained the copyrights that Novell had purchased from AT&T and which Novell had

otherwise created prior to the date of the September 19, 1995, through the Novell Agreement.

SCO’s Legal Actions

8. SCO was involved in several legal disputes involving the UNIX source code that

it thought it had obtained through the Novell Agreement.

9. SCO sued IBM for violating UNIX contracts and infringing UNIX copyrights, all

relating to the pre-1995 code that was originally developed and owned by AT&T and was then

purchased by Novell. SCO also separately alleged that IBM had unfairly competed by deceiving

SCO and taking actions to injure SCO’s ability to leverage the pre-1995 code.

10. SCO sued Novell for slander of title to seek a judicial decree that it owned the

pre-1995 UNIX code that was at issue in the Novell Agreement.

11. And SCO was sued by Red Hat, Inc., and forced into arbitration by SUSE Linux

GmbH, both in relation to the pre-September 19, 1995, copyrights that were at issue in the

Novell Agreement.

12. Ultimately, all four of these disputes hinged on SCO’s ownership of the UNIX

code that was developed before September 19, 1995, and the accompanying copyrights that were

at issue in the Novell Agreement.

13. In March 2010, a jury returned a verdict that the Novell Agreement only

amounted to a license for SCO to use pre-September 19, 1995 UNIX and it was established that

SCO had the right to create and own the copyrights in its own proprietary source code in UNIX.

See SCO Group v. Novell, Inc., Case No. 2:04-cv-00139 (D. Utah), D.I. 877, 878.

14. The Tenth Circuit Court of Appeals did not affirm this ruling until August 30,

2011, approximately a year and a half later. See SCO Group, Inc. v. Novell, Inc., 439 F. App’x

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688, 691 (10th Cir. 2011).

SCO Operations & the Bankruptcy Proceeding

15. SCO was extremely successful due to proprietary developments that it made to its

UNIX operating systems – and specifically to the OpenServer product since SCO’s inception and

to the UnixWare products after September 19, 1995. The copyrights in these proprietary source

code developments were not at issue in the operative complaints in the Novell, IBM, Red Hat, or

SUSE actions.

16. For example, after 1995 and in connection with the joint initiative with IBM that

started in 1998 called Project Monterey, SCO developed “cross-architecture” functionality. The

cross-architecture functionality makes it much easier for enterprise users to transition software

applications from 32-bit environments to higher-powered 64-bit environments. IBM withdrew

from Project Monterey in 2001 before the work was completed. IBM’s deception of SCO and its

withdrawal from Project Monterey are relevant to the unfair competition cause of action that

SCO raised against IBM.

17. Despite SCO’s commercial success prior to IBM pursuing the activities that SCO

identified in the IBM litigation, on September 14, 2007, SCO filed for Chapter 11 bankruptcy.

18. It appears that there was a thought at the time that if SCO were successful in its

ongoing litigation disputes, it may be able to become operational once again.

19. Ultimately, however, after the jury verdict in the litigation between Novell and

SCO in March 2010, SCO sold all of its business operating assets and only retained the assets

needed to continue to pursue its various existing legal disputes.

20. After a bid process, Xinuos was chosen as the buyer of SCO’s business operating

assets. The sale of assets to Xinuos included acquisition of the SCO branding, and the Debtors

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in bankruptcy proceedings are now referred to as TSG Group, Inc. and TSG Operations, Inc.

However, for simplicity’s sake, this declaration and the Objection continue to refer to the

Debtors as SCO in regards to the events from 2011 and earlier.

21. The agreements are all between SCO and UnXis, Inc. UnXis, Inc. is the previous

name used by Xinuos. A true and correct copy of the document filed with the Delaware

Secretary of State effecting the name change is attached herein as Exhibit A.

22. The scope and terms of the asset sale were made explicit in the January 19, 2011

Asset Purchase Agreement by and between The SCO Group, Inc., SCO Operations, Inc., and

UnXis, Inc. (the “Asset Purchase Agreement” or “APA”).

23. In addition, Xinuos entered into a separate Intellectual Property Rights

Assignment that formally assigned all exclusive rights under the Copyright Act related to the

assets purchased to Xinuos. A true and correct copy of the Intellectual Property Rights

Assignments is attached herein as Exhibit B.

The Parties’ Shared Understanding About the Meaning of the Asset Purchase Agreement

24. The background against which the APA was negotiated is crucial to

understanding its material terms, and to understanding the intent of the parties in crafting these

material terms.

25. When the APA was negotiated and ultimately signed, the jury verdict and

judgment had been entered in the litigation between Novell and SCO, but SCO had not yet

exhausted its appeal of the issue of whether SCO had acquired the pre-September 19, 1995

copyrights from Novell. Indeed, as noted above, the Tenth Circuit would not resolve that

question until August 2011.

26. It is my understanding that it was extremely important for SCO to preserve its

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ability to pursue the litigation against Novell, and also the legal disputes with IBM, Red Hat, and

SUSE relating to the pre-September 19, 1995 code and intellectual property obtained from

Novell. SCO had a very large financial stake at issue in these actions.

27. Accordingly, material terms of the asset purchase agreement were drafted in order

to ensure that SCO could continue to pursue these legal disputes. It was Xinuos’ understanding,

intent and position that SCO could continue to pursue its legal disputes regarding pre-September

19, 1995 code and copyrights acquired from Novell. Otherwise, the intent of the parties was to

have Xinuos stand entirely in the shoes of SCO for purposes of running the server operating

system business and controlling all other intellectual property of SCO.

28. The intent of the parties is reflected in section 2.1(c) and in Schedule 2.1(c) of the

APA. These provisions, and in particular Schedule 2.1(c), sub-provision (ix), identify the assets

that were excluded from the sale to Xinuos. The intent of drafting these provisions was to ensure

that SCO could continue to pursue its various legal actions regarding the pre-September 19, 1995

code and copyrights, and to otherwise transfer all other business, operating assets and intellectual

property to Xinuos.

29. The parenthetical clause in section 2.1(a)(vi) was drafted with this in mind as

well. This clause states in relevant part that “for the avoidance of doubt” the assets sold to

Xinuos through the APA do not include any assets, particularly the pre-September 19, 1995 code

and copyrights, that SCO needed to pursue its disputes against Novell, IBM, Red Hat, and SUSE.

Indeed, the entire structure of section 2.1(a)(vi) is consistent with the parties’ understanding at

the time of entering the APA that SCO would only retain the assets needed to pursue its litigation

claims.

30. Similarly, the license back to SCO to use the post-1995 copyrighted code solely

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for purposes of litigating the various pending claims was also drafted with this in mind. SCO

needed to have the ability to use this code in case it was relevant to litigating the disputes (for

example, as evidence of SCO’s market success or other general background issues). There was

no other purpose for SCO to use the post-1995 code because the company was not operational.

By contrast, Xinuos needed to use the code for all other purposes, which is why it otherwise

completely owned the post-1995 code. Xinuos did not extend any right to SCO to “license” or

“sublicense” the post-1995 code or copyrights to any other third party. If Xinuos had intended to

extend such rights it would have said so explicitly, but it did not do so.

31. And this is also why section 2.1(a)(i) expressly states that the assets acquired by

Xinuos through the APA include “all copyrights developed after 1995.” This was expressly

included in the agreement because the intent of the parties was for Xinuos to completely take

over the server operating system business. Xinuos was thus granted complete ownership of the

post-1995 copyrights through the APA, including all constituent rights under the Copyright Act,

and including all rights to assert those copyrights. Xinuos did not leave with SCO or extend to

SCO, and SCO did not retain ownership of, any of the exclusive rights under the copyright

relating to the post-1995 code and copyrights, such as the right to reproduce, distribute or make

derivative works of that code. Xinuos did not leave with SCO or extend to SCO, and SCO did

not retain ownership of, any royalty or licensing revenue stream from Xinuos’ use or

commercialization of the post-1995 code and copyrights.

32. The complete transfer of the post-1995 copyrights, including all constituent rights

under the Copyright Act, and the accompanying rights to assert claims on those copyrights, was

made express in the APA because the parties did not want risk another legal battle like the one

between Novell and SCO. This was Xinuos’ intent in drafting the agreement as it was drafted.

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The Novell dispute arose because the parties could not agree on what was actually transferred in

that asset purchase agreement. The parties drafted the APA to ensure that no such similar

dispute would arise.

33. Finally, it must be stressed that a lot was at stake with this asset sale, and with

SCO’s fall into bankruptcy. SCO, as noted above, was very successful throughout most of its

history, and it had server operating system customers around the globe. Many of these

customers, in fact, were large governmental, business, and educational institutions.

34. If these SCO customers could not receive server operating system support, the

outcome for their ongoing governmental, business, and educational pursuits would be drastically

hampered. The parties understood that this could have consequences that trickle much farther

out into the global economy.

35. Accordingly, a driving motivating factor in drafting the APA was to make sure

that Xinuos could fully and completely take over SCO’s business so that it could provide support

for SCO’s many former customers. Not only was this understood by the parties to the APA, but

it was reinforced on several occasions during the hearing in front of the Bankruptcy Court to

approve the APA. See e.g., D.I. 1249, 65:13-25. It was Xinuos’ intent and understanding that in

order to carry the business forward, it would need to own all intellectual property and

commercial and legal rights in the business assets that it had acquired, including the right to

control the post-1995 copyrights, as well as the right to vindicate Xinuos’ competitive interests

in and relating to the acquired business and products, going forward.

Xinuos’ Suit Against IBM and Red Hat

36. In 2019, Xinuos discovered that some portion of the Post-1995 proprietary UNIX

developments that SCO developed in connection with Project Monterey and that Xinuos

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purchased through the APA were present in IBM’s AIX server operating system products.

37. After further investigation of these circumstances, Xinuos further discovered that

competitors IBM and Red Hat were engaging in anticompetitive and unfair business practices,

including joint action to divide the market between them and to exclude competitors, including

Xinuos, from the market, and to illegally impair the ability of Xinuos’ existing and new products

(particularly the recent OpenServer 10 product developed by Xinuos) to compete in the market,

as well as monopolization of the market generally. Many of the practices identified by Xinuos

through this investigation occurred after 2011.

38. Given the need to protect its intellectual property position, to protect the market

from exclusionary practices that harm consumer welfare, to protect its business and products,

and to protect the very same customers, partners, and operating system ecosystem that animated

the purpose of the APA in the first place, Xinuos was forced to initiate litigation in Federal Court

against IBM and Red Hat. See Xinuos, Inc. v. International Business Machines Corporation, et

al., Case No. 3:21-cv-00031 (D.V.I.), D.I. 1 (Complaint). The Complaint in the Virgin Islands

Litigation alleges that IBM infringed the copyrights that Xinuos owns in the Post-1995 UNIX

and UnixWare developments, and that Red Hat and IBM took joint action to injure the market

and competitors, including Xinuos, and its customers and partners, in violation of the federal

antitrust laws and Virgin Islands anticompetition and unfair practices laws. Id.

39. Xinuos brings these allegations because it has experienced and become aware of

this conduct in the market long after the APA. In recent years, Xinuos has experienced first-

hand the impact of IBM and Red Hat’s anticompetitive conduct and further completed its own

investigations in 2019 to understand the breadth and depth of the illegal activity.

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

knowledge and belief.

Executed this 9th day of September, 2021, in St. Thomas, Virgin Islands.

Sean Snyder

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EXHIBIT A

{00138624;v1 }
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EXHIBIT B

{00138624;v1 }
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INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT

This Intellectual Property Assignment Agreement dated as of this day of April,

2011 (“Assignment”) by and between The SCO Group, Inc. (referred to herein as (“Assignor”), a
corporation of the State of Delaware, with its place of business at 333 South 520 West, Suite
170, Lindon, Utah 84042-1911, and unXis, Inc., a Delaware corporation with its place of
business at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19807 (“Assignee”).

Assignor and Assignee are parties to that certain Asset Purchase Agreement dated as of
January 19, 2011 (the “Purchase Agreement”), pursuant to which Assignor has agreed to assign
such Intellectual Property to Assignee subject to the terms and conditions set forth herein.
Assignor wishes to assign and Assignee wishes to acquire such Intellectual Property. Capitalized
terms used and not defined herein shall have the meanings ascribed to such terms in the Purchase
Agreement.

Each of Assignor and Assignee, in consideration of the mutual promises contained in this
Assignment, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, intending to be legally bound hereby, agrees as follows:

1. Definitions. Except as otherwise provided herein, all capitalized terms contained

and not defined herein (including the recitals hereto) shall have herein the respective meanings
ascribed to them in the Purchase Agreement.

2. Assignment of Intellectual Property. Assignor hereby irrevocably sells, transfers,

conveys, assigns and sets over to Assignee, on a worldwide basis, all of Assignor’s rights, title,
and interests in and to the Intellectual Property, and Assignor reserves no rights in any such
Intellectual Property (except as expressly set forth in the Purchase Agreement).

3. Recordation. Assignor authorizes the Register of Copyrights of the United

States, the United States Patent and Trademark Office, and any Official of any country or
countries foreign to the United States whose duty it is to receive or register copyrights, patents,
trademarks or applications therefor, as applicable, to record Assignee as the owner of the
Intellectual Property and to issue all registrations for said Intellectual Property, to be in the name
of Assignee, as assignee of the Intellectual Property, for the sole use of Assignee in accordance
with the terms of this Assignment.

4. Governing Law. This Assignment is made under, and shall be construed and
enforced in accordance with, the laws of the State of Delaware.

[Signatures continued on following page]

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SCHEDULE “A” TO INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT

U.S. Trademark Registrations:

[All trademark registrations owned by The SCO Group, Inc. unless otherwise indicated]

TRADEMARK COUNTRY STATUS REG. NO. REG. DATE

OPENSERVER UNITED REGISTERED 3,418,266 04-Apr-08

STATES

SCOSOURCE UNITED REGISTERED 3,180,678 05-Dec-06

STATES

SCO UNITED REGISTERED 1,578,766 23-Jan-90

STATES

SCO and Tree Design UNITED REGISTERED 2,064,732 27-May-97

STATES

UNITED REGISTERED 3,456,764 01-July-08

STATES

CALDERA UNITED REGISTERED 2,061,968 13-May-97

STATES

Foreign Trademark Registrations 1:

TRADEMARK COUNTRY FILING APP. NO. STATUS REG. REG. DATE
DATE NO.

OPENSERVER EUROPEAN 19-Apr-06 5026241 PENDING

UNION (CTM)

OPENSERVER AUSTRALIA 31-May-06 1116813 PENDING

OPENSERVER CHINA PENDING

OPENSERVER INDIA PENDING

OPENSERVER MEXICO PENDING

OPENSERVER BRAZIL PENDING

SCO (Class 9) ARGENTINA 26-Sep-91 1.817.974 REGISTERED 1472693 30-Sep-93

SCO (Class 9) AUSTRALIA 05-Sep-91 563112 REGISTERED 563112 06-Oct-94

1
Foreign trademarks and services marks subject to review and confirmation by foreign counsel.

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TRADEMARK COUNTRY FILING APP. NO. STATUS REG. REG. DATE

DATE NO.

SCO BENELUX 08-Feb-90 741099 REGISTERED 472347 08-Feb-90

SCO (Class 9) BRAZIL 27-Nov-92 816968500 REGISTERED 81696850 22-Mar-94

0

SCO CANADA 10-Sep-91 688910 REGISTERED 411425 23-Apr-93

SCO (Class 9) CHINA 13-Jan-93 93002964 REGISTERED 684502 07-Apr-94

SCO DENMARK 11-Sep-91 6499 1991 REGISTERED 10.006- 30-Oct-92

SCO 1992

SCO FINLAND 05-Sep-91 4196/91 REGISTERED 123767 21-Dec-92

SCO (Class 9) FRANCE 09-Sep-91 307101 REGISTERED 1692453 09-Sep-91

SCO (Classes 9 FRANCE 13-Mar-87 844624 REGISTERED 1398504

and 42)

SCO GERMANY 01-Mar-90 N/A REGISTERED 1 186 634 15-Jan-93

SCO (Classes 42 UNITED 17-Sep-91 1477303 REGISTERED 1477303 05-Feb-93

and 9) KINGDOM

SCO (Class 9) HONG KONG 11-Sep-91 6689/91 and REGISTERED 19930087 04-Mar-93
6690/91 9AA

SCO INTERNATION 15-Jul-87 n/a REGISTERED 516 330 15-Jul-87

AL

SCO IRELAND 05-Sep-91 91/4542 REGISTERED 146285 20-Jan-94

SCO ITALY 10-Sep-91 RM91C00319 REGISTERED 615327 02-Mar-94

6

SCO (Class 9) JAPAN 07-Mar-91 23992/1991 REGISTERED 2610962 24-Dec-93

SCO (Class 9) MEXICO 14-Mar-91 108786 REGISTERED 399947 26-Sep-91

SCO (Class 9) NEW ZEALAND 06-Sep-91 212704 REGISTERED 212704 09-Feb-96

SCO NORWAY 06-Sep-91 91/4524 REGISTERED 154.571 14-Jan-93

SCO (Class 9) PORTUGAL 12-Nov-91 278.165 REGISTERED 278.165 17-Aug-93

SCO SOUTH KOREA 10-Sep-91 26322/91 REGISTERED 258794 23-Feb-93

SCO SPAIN 20-Feb-90 1550163 REGISTERED 1550163 06-Apr-92

SCO SWEDEN 06-Sep-91 91-07618 REGISTERED 249102 14-May-93

SCO SWITZERLAND 05-Sep-91 6145-1991.4 REGISTERED 392.642 20-Jul-92

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TRADEMARK COUNTRY FILING APP. NO. STATUS REG. REG. DATE

DATE NO.

SCO (Taiwan TAIWAN 06-May-91 80019453 REGISTERED 548772 16-Jan-92

Class 72)

SCO (Taiwan TAIWAN 06-May-91 80019452 REGISTERED 538736 16-Oct-91

Class 49)

SCO FEDERATION 09-Oct-91 143821 REGISTERED 109157 22-Dec-92

OF RUSSIA

SCO (Class 9 and CHILE 10-Sep-91 187.229 REGISTERED 630.565 17-May-92

16)

SCO and Tree AUSTRALIA 15-Feb-96 702508 REGISTERED 702508 18-Apr-97

Design

SCO and Tree BENELUX 14-Feb-96 865273 REGISTERED 587243 14-Feb-96

Design

SCO and Tree BRAZIL 26-Aug-96 819433667 REGISTERED 81943366 30-Mar-99

Design 7

SCO and Tree CANADA 16-Feb-96 804662 REGISTERED 475359 29-Apr-97

Design

SCO and Tree CHINA 27-Mar-96 960040644 REGISTERED 1065879 28-Jul-97

Design

SCO and Tree EUROPEAN 01-Apr-96 183129 REGISTERED 183129 18-Jan-99

Design UNION (CTM)

SCO and Tree HONG KONG 24-Feb-96 2253/96 REGISTERED 19970508 06-May-97
Design 0

SCO and Tree MEXICO 20-Feb-96 254919 REGISTERED 660016

Design

SCO and Tree SOUTH KOREA 16-Feb-96 1996-6058 REGISTERED 380641 01-Nov-97
Design

SCO and Tree TAIWAN 14-Mar-96 85011915 REGISTERED 753030 16-Mar-97

Design

SCO (Class 9) BANGLADESH 30-Sep-91 33554 REGISTERED 33554

SCO (Class 9) UNITED 17-Sep-91 1477302 REGISTERED 1477302

KINGDOM

SCO EUROPEAN 15-Mar-10 008953713 REGISTERED 00895371 02-Sep-10

UNION (CTM) 3

OPENLINUX EUROPEAN 01-Oct-99 1335322 REGISTERED 1335322

UNION (CTM)

SCO & TREE EUROPEAN 07-Dec-07 006493341 REGISTERED 00649334

DESIGN (new

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TRADEMARK COUNTRY FILING APP. NO. STATUS REG. REG. DATE

DATE NO.

logo) UNION (CTM) 1

SCO & TREE CANADA 07-Dec-07 1375309 PENDING

DESIGN (new
logo)

SCO & TREE JAPAN 07-Dec-07 2007-122127 REGISTERED 5204888

DESIGN (new
logo)

SCO & TREE AUSTRALIA 07-Dec-07 1214418 REGISTERED 1214418

DESIGN (new
logo)

U. S. Copyright Registrations:

The following copyright registrations, except to the extent incorporating any Excluded Assets:

Title Owner Reg. No. Reg. Date Status

SCO OpenServer : release 5.0.5 SCO Group, Inc. TX 6-008-305 8/31/2004 Registered

UNIX system V : release 3.0 The SCO Group, TX 5-750-270 7/7/2003 Registered
Inc.

UNIX system V : release 3.1 The SCO Group, TX 5-750-269 7/7/2003 Registered
Inc.

UNIX system V : release 3.2 The SCO Group, TX 5-750-271 7/7/2003 Registered
Inc.

UNIX system V : release The SCO Group, TX 5-750-268 7/7/2003 Registered

3.2/386 Inc.

UNIX system V : release 4.0 The SCO Group, TX 5-776-217 7/16/2003 Registered
Inc.

UNIX system V : release 4.1 The SCO Group, TX 5-762-234 7/3/2003 Registered
Inc.

UNIX system V, release 4.1ES The SCO Group, TX 5-705-356 6/30/2003 Registered
Inc.

UNIX system V : release 4.2 The SCO Group, TX 5-762-235 7/3/2003 Registered
Inc.

UNIX System V release 4.2MP The SCO Group, TX 5-972-097 6/29/2004 Registered
Inc.

UnixWare 7.1.3 SCO Group, Inc. TX 5-787-679 6/11/2003 Registered

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Domain Name Registrations:

Domain Name Registrant Creation Date Expiration

Date

meincsales.org The SCO Group 2/27/2006 2/27/2011

meincsalesagent.com The SCO Group 2/27/2006 2/27/2011

projectmonterey.com The SCO Group 3/24/1999 3/24/2011

scomobile.com The SCO Group 4/1/2005 4/1/2011

mobilets.net The SCO Group 4/1/2005 4/1/2011

calderasystems.com The SCO Group 8/13/1998 8/12/2011

thescogroup.com The SCO Group 8/19/2002 8/19/2011

sco.com The SCO Group 9/3/1987 9/2/2011

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