RECITALS

A. Seller [Novell] is engaged in the business of
1. developing a line of software products currently known as Unix and UnixWare,
2. the sale of binary and source code licenses to various versions of Unix and UnixWare,
3. the support of such products and
4. the sale of other products which are directly related to Unix and UnixWare
(collectively, the "Business").

ARTICLE I

THE ACQUISITION

1.1 Purchase of Assets

(a) Purchase and Sale of Assets. On the terms and subject to the conditions set forth in this Agreement, Seller [Novell] will sell, convey, transfer, assign and deliver to Buyer [Old Santa Cruz Operation] and Buyer [Old Santa Cruz Operation] will purchase and acquire from Seller [Novell] on the Closing Date (as defined in Section 1.7), all of Seller's [Novell's] right, title and interest in and to the assets and properties of Seller [Novell] 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):



Schedule 1.1(b) Excluded Assets (Page 1 of 2) I. Any asset not listed in Schedule 1.1(a) including without limitation any asset which pertains to NetWare which is not listed on Schedule 1.1(a)   Schedule 1.1(a) Assets (Page 1 of 4) I. 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 in process), and all technical, design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotation, appropriate engineering, notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller [Novell] to end-users and potential end-users in connection with the distribution of UNIX and UnixWare, such assets to include without limitation the following: UNIX Source Code Products A. UnixWare 2.0 as described in the UnixWare 2.0 Licensing Schedule and those products listed as "prior" products on such schedule (includes source code updates where appropriate - i.e. UnixWare product family). B. UNIX SVR4.1 ES as described in the UNIX SVR4.1 ES Licensing Schedule and those products listed as "prior" products on such schedule. C. UNIX SVR4.0 MP as described in the UNIX SVR4.0 MP Licensing Schedule and those products listed as "prior" products on such schedule. D. Ancillary SVRx Products (a final list of which shall be developed by the partied prior to the Closing) Binary Product Releases A. UnixWare 2.01 Product Family described by the Novell UnixWare 2.01 Part/Price List B. UnixWare 2.0.x update releases C. UnixWare 1.1 Product Family as described by the Novell UnixWare 1.1 Part/Price List D. UnixWare 1.1.x - update releases Products Under Development A. UnixWare 2.1 (Eiger) - contains NetWare UNIX Client and Server capabilities B. UnixWare 2.1 Oracle Parallel Server (OPS) C. UnixWare 2.03 - maintenance update under development D. UnixWare 2.0.x/7.1 Enhanced Mode Merge E. UnixWare 2 Internet Server Schedule 1.1(g) [sic] Assets (Page 2 of 4) Other Technology [this seems to be missing from Groklaw references] A. UnixWare system/HBA/etc. Test/Cerification Suites used by Novell Labs B. UnixWare "OS Branding" Test Suites C. UnixWare "OS Compatible" [Requirements?] D. Oracle Performance Test Suite E. ARTUS, Bart, Buster Internal UNIX Test suites and test harnesses. F. UnixWare Training/Education Courseware G. Requirements, Design, and Test Specifications for UnixWare 2 H. Technical Support Update Manager I. Marketing collateral/information in electronic form J. ODI Transmogrification software II. All of Seller's [Novell's]claims arising after the Closing Date against any parties relating to any right, property or asset included in the Business. III. All of Seller's [Novell's] rights pertaining to UNIX and UnixWare under any software development contracts, licenses and any other contracts to which Seller [Novell] is a party or by which it is bound and which pertain to the Business (to the extent that such contracts are assignable), including without limitation: A. Joint Development with third parties: 1. In-process development agreements 2. Past development agreements with on-going pricing discounts 3. Past development agreements without ongoing pricing discounts 4. Joint development agreements in which Seller [Novell] didn't get full rights to the code developed. B. Third Party Software license agreements -- Those agreements in which Seller [Novell] pays per copy fees for technology/products which are shipped with or to be used with UNIX System and/or UnixWare. C. Joint marketing agreements -- Marketing programs with customers. D. End user MLA agreements -- Agreements to allow end users to copy binary products for internal use only. Associated with these agreements are support requirements. E. UNIX-only VAR agreements -- UNIX Master VARs Schedule 1.1(a) Assets (Page 3 of 4) F. Support agreements - End user support agreements (i.e. TMAC, NALCOMIS) G. Microsoft agreement (Xenix Agreement) - Xenix compatibility and per copy fee agreement. Seller [Novell] will agree to discuss with SCO Seller's [Novell's] interpretation of this agreement. H. Microsoft Agreement (Extra-Ordinary Discount) - Microsoft's additional discount beyond 50% I. Strategic Relationship Agreements (i.e. MTA, ECPA, MBA, etc.) J. Out-sourced development (i.e. India) - Development agreements with third parties Wipro and HCL) and Infix Development Center. IDC is a Seller [Novell] subsidiary. K. Out-sourced Support Agreements L. Software and Sublicensing Agreements - This includes the source codes and sublicensing agreements that Seller [Novell] has with its OEM, End User and Educational customers. The total number of these agreements is approximately 30,000. M. OEM Binary Licensing Agreements - OEM distribution of UnixWare with Seller [Novell]'s agreement to include some OEM added value into future releases of UnixWare. IV. All copies of Unix and UnixWare, wherever located, owned by Seller [Novell]. V. Intellectual property - Trademarks UNIX and UnixWare as and to the extent held by Seller [Novell] (excluding any compensation Seller [Novell] receives with respect of the license granted to X/Open regarding the UNIX trademark). VI. All contracts relating to the SVRX Licenses listed below: - UNIX System V Release 4.2 MP Intel386 Implementation - #UNIX System V Release 4.2 MP International Edition, Intel386 Implementation - UNIX System V Release 4.2 Intel386 Implementation - #UNIX System V Release 4.2 International Edition, Intel386 Implementation - UNIX System V Release 4.1 ES Intel386 Implementation - #UNIX System V Release 4.1 ES International Edition Intel386 Implementation Schedule 1.1(a) Assets (Page 4 of 4) - UNIX System V Release 4.0 MP Intel386 Implementation - #UNIX System V Release 4.0 MP International Edition Intel386 Implementation - UNIX System V Release 4.0 MP Intel386 Version 4 Implementation - #UNIX System V Release 4.0 International Edition Intel386 Version 4 Implementation - UNIX System V Release 4.0 Intel386 Version 3 Implementation - #UNIX System V Release 4.0 International Edition Intel386 Version 3 Implementation - UNIX System V Release 4.0 Intel386 Version 2 Implementation - #UNIX System V Release 4.0 International Edition Intel386 Version 2 Implementation - UNIX System V Release 4.0 Intel386 Version 1 Implementation - #UNIX System V Release 4.0 International Edition Intel386 Version 1 Implementation - UNIX System V/386 Release 3.2 and #UNIX System V/386 Release 3.2 International Edition - UNIX System V Release 3.2 and #UNIX System V Release 3.2 International Edition - UNIX System V Release 3.1 and #UNIX System V Release 3.1 International Edition - UNIX System V Release 3.0 and #UNIX System V Release 3.0 International Edition - All prior releases and versions of UNIX System V Release 2.1 - #All prior releases and versions of UNIX System V Release 2.1 International Edition - All prior releases and versions of UNIX System V Release 2.0 - #All prior releases and versions of UNIX System V Release 2.0 International Edition - All prior UNIX System releases and versions preceding UNIX System V Release 2.0 - #All prior UNIX System releases and versions preceding UNIX System V Release 2.0 International Editions VII. Such office furniture and personal computers or work stations as may be currently used by the employees of Seller [Novell] hired by Buyer [Old Santa Cruz Operation] pursuant to Section 4.13 hereof. End - Schedule 1.1(a) Assets Schedule 1.1(b) Excluded Assets (Page 1 of 2) continued II. Netware Operating System and Services III. TUCEDO Transaction Processing IV. Licensed technology, including: A. NetWare and other Novell code contained in UnixWare 2.01 and Eiger 1. ODI software contained in NetWare and UnixWare LAN drive Test Kit 2. Nprinter (for printing from NetWare to UnixWare Server) 3. NUC (NetWare UNIX Client - for print, inc from UnixWare to NetWare Server) 4. TNVT, Host Presenter (Terminal Emulator to Log into UnixWare Server from Netware Client) 5. MHS Gateway (Mail Gateway) 6. IPX/SPX (Re-Write of native 4.1) 7. ODI (Networking driver protocol, version 3.3 of assembly Spec and 1.0 of C Spec) 8. Kconsole (Log-in to NetWare console) 9. UnixWare TSA (SMS is back-up and restore, TSA is the "agent" needed to do this) 10. Some NetWare Client APIs 11. DR-DOS 12. Host Presenter (Binary Only) 13. TNVT (Binary Only) 14. criptor(??? unreadable from PDF ???) (Binary Only) 15. NetWare NLM (Binary Only) B. NetWare code contained in Eiger Only 1. NDS APIs 2. NWS (inc NetWare File Print and Directory Services) C. NetWare 4.1 for UnixWare Schedule 1.1(b) Excluded Assets (Page 2 of 2) V. Intellectual Property: A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare. B. All Patents VI. Existing Master License Agreements with end users which include, in addition to other products of Seller [Novell], integrated delivery of UnixWare. VII. All accounts receivable or rights to payment concerning the Asset arising prior to the Closing Date. VIII. All rights, title and interest to the SVR's Royalties less than 5% fee for adminstrating the collecting thereof pursuant to Section 4.16 hereof. End - Schedule 1.1(b) Excluded Assets (Page 2 of 2)

Continue - APA - 1.1 Purchase of Assets

(b) Assumption of Liabilities. At the Closing, Buyer [Old Santa Cruz Operation] shall assume those obligations and liabilities of Seller [Novell] [Novell] set forth on Schedule 1.1(c) hereto (collectively, the "Assumed Liabilities").

(c) Liabilities Not Assumed. Other than the Assumed Liabilities, Buyer [Old Santa Cruz Operation] shall not assume, nor shall Buyer [Old Santa Cruz Operation] or any affiliate of Buyer [Old Santa Cruz Operation] be deemed to have assumed or guaranteed, any other liability or obligation of any nature of Seller [Novell], or claims of such liability or obligation, whether accrued, matured or unmatured, liquidated or unliquidated, fixed or contingent, known or unknown arising out of

• (i) acts or occurrences related to any of the Assets, prior to the Closing Date, or
• (ii) any other liability or obligation of Seller [Novell] which is not an Assumed Liability (collectively, the "Unassumed Liabilities"). Seller [Novell] will remain responsible for all Unassumed Liabilities.

End - APA - 1.1 Purchase of Assets - a limited subset

AMENDMENT No. 2 TO THE ASSET PURCHASE AGREEMENT

As of the 16 th day of October, 1996, the September 19, 1995 Asset Purchase Agreement (the "Agreement") between Novell [Seller], Inc. ("Novell") and The Santa Cruz Operation [Buyer], Inc. ("SCO") is amended in the following respects.

1. A. With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:
   All copyrights and trademarks, except for the copyrights and trademarks owned by Novell [Seller] as of the date of the Agreement required for SCO [Buyer] to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell [Seller] be liable to SCO [Buyer] for any claim brought by any third party pertaining to said copyrights and trademarks.

2. B. Except as provided in Section C below, and notwithstanding the provisions of Article 4.16, Sections (b) and (c) of the Agreement, any potential transaction with an SVRX licensee which concerns a buy-out of any such licensee's royalty obligations shall be managed as follows:
   • 1. Should either party become aware of any such potential transaction, it will immediately notify the other in writing.
   • 2. Any meetings and/or negotiations with the licensee will be attended by both parties, unless agreed otherwise. Novell's [Seller's] participation will be by personnel who are engaged in corporate business development.
   • 3. Any written proposal to be presented to the licensee, including drafts and final versions of any proposed amendments to the SVRX licenses, will be consented to by both parties prior to its delivery to the licensee, unless agreed otherwise.
   • 4. Prior to either parties' unilateral determination as to the suitability of any potential buy-out transaction, the parties will meet face to face and analyze the potential merits and disadvantages of the transaction. No such transaction will be concluded unless the execution copy of the amendment is consented to in writing by both parties, and either party will have the unilateral right to withhold its consent should it judge, for any reason whatsoever, the transaction to be contrary to its economic interests and/or its business plans and strategy.
   • 5. This Amendment does not give Novell [Seller] the right to increase any SVRX licensee's rights to SVRX source code, nor does it give Novell [Seller] the right to grant new SVRX source code licenses. In addition, Novell [Seller] may not prevent SCO [Buyer] from exercising its rights with respect to SVRX source code in accordance with the Agreement.
   • 6. The parties agree that no member of Novell's [Seller's] sales force will receive a bonus, commission, quota attainment credit, or other type of sales incentive as a result of the buy-out of an SVRX license.
   
   
3. C. Novell [Seller] may execute a buy-out with a licensee without any approval or involvement of SCO [Buyer], and will no longer be bound by any of the requirements stated in Section B. above, if: (i) SCO [Buyer] ceases to actively and aggressively market SCO's [Buyer's] UNIX platforms; or (ii) upon a change of control of SCO [Buyer] as stated in schedule 6.3(g) of the Agreement.
   
   
4. D. Novell [Seller] and SCO [Buyer] agree to indemnify and hold harmless the other from and against any and all losses, liabilities, judgments, and costs incurred ("Liability") if either causes the other to incur Liability under Section 10 of Amendment No. X to Software Agreement SOFT-00015 as amended, Sublicensing Agreement SUB-00015A as amended, Software Agreement SOFT-00015 Supplement No. 170 as amended, and Substitution Agreement XPER-00015B ("Amendment No. X"). [emphasis added]

In witness whereof, the parties have executed this Amendment No. 2 to be signed by their duly authorized representatives as of the date first written above.

THE SANTA CRUZ OPERATION, INC. 

By: 

/s/ STEVEN M. SABBATH 
Name: Steven M. Sabbath 
Title: 
Vice President Law & Corporate Affairs 

 NOVELL, INC. 

By: 

/s/ JAMES R. TOLONEN
Name: 
James R. Tolonen 
Title: 
EVP & CFO 

APA Schedule 1.1(b) V. A. - Excluded Assets - as modified by Amendment No. 2

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.

becomes

A. All copyrights and trademarks, except for the copyrights and trademarks owned by Novell [Seller] as of the date of the Agreement required for SCO [Buyer] to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell [Seller] be liable to SCO [Buyer] for any claim brought by any third party pertaining to said copyrights and trademarks.