Quote:

It's interesting that one of the scuttlebutts I'd heard at one point recently was that: A> Amiga Inc claimed to have invoked the buyback clause, and B> Hyperion claimed that the buyback clause had not, to their knowledge, been invoked. It sounds like you're assuming that, because Amiga Inc sent X-number of dollars to Hyperion at some point, and it was an amount that happened to match the amount that was specified in the buyback clause, that that in an of itself constituted invoking the buyback clause.

McEwen claimed during his 20 questions that they had bought back the OS, he in fact said he'd done it on April 24, 2003. We know have a bill of sale (Exhibit F) signed between Kouri and Hermans that says that very thing. Hyperion actually made a big point of not saying that it hadnt been exercised. Rogue said as far as he knew he hadnt been but that he wasnt talking for Hyperion in an official manner. The Bill of Sale it quite blatant that its for the OS, under the terms from the agreement for 25K, there is no wiggle room here.


Quote:

In other words, it could literally be possible for Hyperion to not be aware that Amiga had allegedly invoked the buyback clause merely by Hyperion having accepting some money from Amiga Inc, and that Hyperion had not at all intended or expected that this arrival of money from Amiga Inc would have constituted performing the buyback clause.

No Ben Hermans as managing partner at least needs to know because he signed the bill of sale.

Quote:

Is there a document somewhere that explicitly has Hyperion signing in acknowledgment that the buyback clause had been invoked and completed? Or is this purely based on the fact that X-number of dollars changed hands?

No, there is a bill of sale (again Exhibit F) signed by Ben Hermans for the OS, for 25K, its really that simple.

Quote:

In other words, they'd snookered him -- a man just passing through -- because they desperately needed a new sheriff.

No way they were snookered in any way.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

I wish people wouldn't comment on documents that they haven't even read.

The original contract states that Hyperion don't pay any royalty fee to Amiga for the classic version of OS4.0 (only for any versions released after 4.0)

Eyetech pay Amiga Inc $25 royalty per unit of OS4 sold with the AmigaOne machines.

So there's no way under this agreement that Amiga Inc could owe Hyperion money, the only payments are made by Hyperion/Eyetech.


However, Hyperion and Amiga Inc/KMOS entered into a deal to port OS4 to the Arctic reference platform. (Exhibit G)

Hyperion claimed that the buy-back clause had not been invoked because the money Amiga Inc had given them was for the Arctic port and not as the buy-back clause. Reading the contract no payment agreement is mentioned, it is just a contract that allows Hyperion to port the OS.

However, it does state that no later than 3 months after completing the work Hyperion must transfer all source code, interest and title to Amiga/KMOS. Do Hyperion even read the contracts they sign?!?



Exhibit F in McEwen's original declaration is a contract signed by Ben Herman's and Pentti Kourri on April 24 2003 stating that on receipt of $25,000 the OS must be transferred to Itec in accordance with the November 1 2001 agreement. This new contract was signed I assume because Itec took over the rights of AmigaOS.

Exhibit J lists receipts and details of payments made to Hyperion Entertainment for OS4 over April and May 2003. From what Bill said in his declaration Hyperion were strapped for cash and on the verge of going bankrupt so requested the money from Amiga. You could possibly think that maybe Hyperion believed that this wouldn't be put towards the buyback clause, but Ben Herman's had signed the contract confirming the buy-back agreement on the 24th April.

_________________
Currently planning to upgrade my Amstrad CPC

@jahc

Quote:

this factual event alone should be enough to win the court case, you would think. I am VERY curious as to what Hyperions defense will be. I just cant see how they can get around this. I think their side of the story might differ, and even shock some people. At least, I think it will shock me. :)

No kidding, that document is the closest this dispute has to a smoking gun. Unless Hyperion can come up with a way to somehow invalidate that document (don't ask me how! ), this could get wrapped up in less than a month.

@CodeSmith


I think that they will focus on the sale to ITEC as the weak point in the whole saga.
Gary Hare had some pronouncements on the ITEC/ Amiga relationship that make the declared ITEC saga unclear.

http://amigaworld.net/modules/features/index.php?op=r&cat_id=3&rev_id=50&sort_by

Question 1.12: Who is Itec and what is their relationship to Amiga, KMOS and you?

Garry: Itec has been an investor in Amiga since the purchase of the assets from Gateway. It remains an investor today. Itec is also the Senior (first place) Secured Creditor of Amiga Inc. KMOS purchased the OS asset from Itec. There is no formal relationship between the companies (KMOS and Itec). I am not involved in Itec in any way.

Last edited by Spectre660 on 14-May-2007 at 12:43 AM.
Last edited by Spectre660 on 14-May-2007 at 12:25 AM.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@jorkany

Quote:

I take it you haven't seen the receipt from Hyperion in Exhibit J yet.

No, can't say as I have. Is it true that it indicates that $25000 was paid to Hyperion to buy back AmigaOs4 per the buyback clause, or is it just a receipt for $25k?

Probably should keep my mouth shut until the dust settles, there's too much to try to keep up with here....I just see a repeated pattern of behavior from AInc that makes me very suspicious of their statements.

Scott

_________________
AmigaOne uA1-c 512M RAM - Only Amiga Makes It Possible!
Check my blog AmigaOne Computing

@Spectre660

Quote:

Spectre660 wrote: @Tigger The pdf showing the details of the serving of the Legal Documents on Hyperion in Belgium indicates tha Ben Hermans resigned from the company before signing the buyback agreement.

_________________
"If you want to tell people the truth, make them laugh, otherwise they'll kill you." - Oscar Wilde

@T_Bone

sorry. confused by US and English date formats. he resigned on 10/01/2003 according to the document. (US format is 10 Oct 2003 British format is 10 Jan 2003)The Agreement was dated 24th April 2003.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

lets fan some flames

http://www.theregister.co.uk/2004/03/16/amiga_flogs_off_classic_os/

http://www.topix.net/forum/city/kent-wa/T6TE3BB2QIOPAK8OT

Last edited by Spectre660 on 14-May-2007 at 02:46 AM.
Last edited by Spectre660 on 14-May-2007 at 02:46 AM.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

Re Clause 7.12 of the Agreement

The Agreement shall be binding upon and insure to the benefit of each party hereto, and their
successors and assigns. Neither party shall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent.

Note that they were 3 parties signing the agreement Amiga Inc,Hyperion VOF and Eyetech Group LTD.
Amiga INC #1 had no successsors because they did not merge but sold assets.


Legal succession: Inheritance or heirship
Succession of property at law covers the two distinct concepts of inheritance (a gift made by will or other testamentary document on death) and heirship, which applies where property passed to one or more dependants according to a formula set out in law, religion, custom or under the terms of a trust. Succession may also apply to artificial persons, usually through corporate mergers or reorganizations.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Tigger

Quote:

McEwen claimed during his 20 questions that they had bought back the OS, he in fact said he'd done it on April 24, 2003.

That's not really proof, now is it?

I have been going through those documents again, but I can't find the payment slips. What were the dates of the payments?

Quote:

We know have a bill of sale (Exhibit F) signed between Kouri and Hermans that says that very thing. Hyperion actually made a big point of not saying that it hadnt been exercised. Rogue said as far as he knew he hadnt been but that he wasnt talking for Hyperion in an official manner. The Bill of Sale it quite blatant that its for the OS, under the terms from the agreement for 25K, there is no wiggle room here.

We have a Bill of Sale that still acknowledges all the terms of the original agreement. So that includes the fact that some parts (perhaps in this case all) can't be surrendered, because Hyperion isn't the author. That includes that any payment might not be the payment for OS4, as the balance between the companies takes priority over this specific transaction.

So there still is wiggle room.

I know we are speculating here, because when it turns out there was no further financial agreement between AI and Hyperion, AI has a solid case. But when it turns out there were more agreements (like the Arctic agreement), things might not look so bright for AI. And again, the fact that AI payed more money, looks like AI admits the balance indicated AI owed Hyperion money.

I think that all we want is that you take this into consideration when you are posting.
So far you have not been able to close all the gaps.

Again, we are not saying you are wrong, but all we are saying is that is too early and we haven't seen the story from Hyperion side to be sure that you are right.

It takes two to tango and it takes stories from BOTH sides (AI and Hyperion), before we can make up our minds. Especially since the AI proof isn't airtight.

@Spectre660

Quote:

Spectre660 wrote: @T_Bone sorry. confused by US and English date formats. he resigned on 10/01/2003 according to the document. (US format is 10 Oct 2003 British format is 10 Jan 2003)The Agreement was dated 24th April 2003.

Whew, thought things were going to get crazier. Can you imagine?

_________________
"If you want to tell people the truth, make them laugh, otherwise they'll kill you." - Oscar Wilde

@Spectre660

Quote:

Spectre660 wrote: lets fan some flames http://www.theregister.co.uk/2004/03/16/amiga_flogs_off_classic_os/

We all read this at the time, but now reading it with current events in mind, it should have been obvious to us that the buyback had already occurred then. Why did we all miss it?

_________________
"If you want to tell people the truth, make them laugh, otherwise they'll kill you." - Oscar Wilde

@Colin_Camper

Quote:

Colin_Camper wrote: @JackAttack Quote: I think I can contribute with some no-nonsense observations, ......and long may you continue, Sir. When I read posts here, I tend to hear in my head the excited babble of Year 9 school pupils. Then, every so often, one of your posts pops up, and the narrataive voice changes to that of David Dimbleby covering a very special occasion with all the cool and calm gravitas of a seasoned pro. Many thanks!

Thank you, Sir, for the kind words!

I think it's too early to dig into the details, as we don't yet have all the information. Even then I don't think it's likely the case will revolve around the interpretation of a single clause in the contract, since both parties have failed on several counts each.

_________________
You know when you've been JackAttacked!

@Tigger

Quote:

Tigger wrote: Quote: It's interesting that one of the scuttlebutts I'd heard at one point recently was that: A> Amiga Inc claimed to have invoked the buyback clause, and B> Hyperion claimed that the buyback clause had not, to their knowledge, been invoked. It sounds like you're assuming that, because Amiga Inc sent X-number of dollars to Hyperion at some point, and it was an amount that happened to match the amount that was specified in the buyback clause, that that in an of itself constituted invoking the buyback clause. McEwen claimed during his 20 questions that they had bought back the OS, he in fact said he'd done it on April 24, 2003. We know have a bill of sale (Exhibit F) signed between Kouri and Hermans that says that very thing. Hyperion actually made a big point of not saying that it hadnt been exercised. Rogue said as far as he knew he hadnt been but that he wasnt talking for Hyperion in an official manner. The Bill of Sale it quite blatant that its for the OS, under the terms from the agreement for 25K, there is no wiggle room here.

Exhibit F is not a bill of sale. It's an agreement, probably intended to change the "Amiga Inc" bit to "Itec". As it says, "...Hyperion confirms that for the receipt of USD25,000, Hyperion shall transfer....". It is not a receipt that confirms Hyperion have received $25,000 (they hadn't at that point).

02 Apr 2003 - McEwen emails Kouri saying they owe Hyperion $22,500 for OS4.
03 Apr 2003 - Kouri authorises $2,250 to be transferred from Tachyon to Hyperion
24 Apr 2003 - Itec/Hyperion sign agreement regarding the $25,000-for-OS4.
05 May 2003 - Itec transfers $20,000 to Hyperion
07 Apr 2004 - KMOS & Hyperion sign the "Arctic" agreement

Odd things:
1. McEwen's 02-Apr email, implies someone has already paid $2,250 to Hyperion for OS4. But there is no evidence and no understanding from Hyperion that's what the money was for.
2. We have no idea what the $2,250 payment on 03-Apr was in exchange for. The contract between Hyperion & Itec for OS4 hadn't been signed yet and there is no documentation to say it was for OS4.
3. If you pay someone, you normally tell them what it's for. There is a conspicuous absence of such communications - again exhibit F is not a bill of sale!
4. Why would KMOS sign an agreement if Hyperion hadn't fulfilled the one from the previous year?

Amiga's evidence so far is like swiss cheese. Hopefully Hyperion's reply will fill in the (many) holes.

Last edited by smithy on 14-May-2007 at 01:29 PM.

@Spectre660

Quote:

Spectre660 wrote: @CodeSmith I think that they will focus on the sale to ITEC as the weak point in the whole saga. Gary Hare had some pronouncements on the ITEC/ Amiga relationship that make the declared ITEC saga unclear. http://amigaworld.net/modules/features/index.php?op=r&cat_id=3&rev_id=50&sort_by Question 1.12: Who is Itec and what is their relationship to Amiga, KMOS and you? Garry: Itec has been an investor in Amiga since the purchase of the assets from Gateway. It remains an investor today. Itec is also the Senior (first place) Secured Creditor of Amiga Inc. KMOS purchased the OS asset from Itec. There is no formal relationship between the companies (KMOS and Itec). I am not involved in Itec in any way.

KMOS bought OS 4.0 from Itec on Oct 10, 2003, that sale is part of the March 15, 2004 documents in the Thendic/Amiga court case.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

Quote:

smithy wrote: Exhibit F is not a bill of sale. It's an agreement, probably intended to change the "Amiga Inc" bit to "Itec". As it says, "...Hyperion confirms that for the receipt of USD25,000, Hyperion shall transfer....". It is not a receipt that confirms Hyperion have received $25,000 (they hadn't at that point).

It is a bill of sale, its not a receipt that Hyperion has received the money, you seem to be implying those are the same, they arent necessarily.

Quote:

07 Apr 2004 - KMOS & Hyperion sign the "Arctic" agreement

Arctic agreement has nothing to do with this, except that once again Hyperion promised to deliver OS 4.0 (and if the Friedens signed this, they will have to supply there code) and once again did not deliver.

Quote:

Odd things: 1. McEwen's 02-Apr email, implies someone has already paid $2,250 to Hyperion for OS4. But there is no evidence and no understanding from Hyperion that's what the money was for.

Unpaid royalties to AI, and the 2001 agreement in fact talks about that number can be taken from the total amount owed for the buyback.

Quote:

2. We have no idea what the $2,250 payment on 03-Apr was in exchange for. The contract between Hyperion & Itec for OS4 hadn't been signed yet and there is no documentation to say it was for OS4.

In reality it doesnt matter, according to Shatan's letter of Nov 21, 2006, they have now paid all money that Ben has even asked for in relation to this, and still no code, etc has been delivered. Thats silly and its why Hyperion is going to lose. If they had delivered what some would have considered a partial delivery back in 2003, they could then argue the case on whether they had done due dilegence in getting AI a fair value, etc. By delivering nothing, they have no leg to stand on in this issue.

Quote:

3. If you pay someone, you normally tell them what it's for. There is a conspicuous absence of such communications - again exhibit F is not a bill of sale!

Actually it is a bill of sale, it agrees to the amount and what is being sold and its signed by both parties. Payment has to occur for it to be finalized, but its a bill of sale.

Quote:

4. Why would KMOS sign an agreement if Hyperion hadn't fulfilled the one from the previous year?

Because they wanted to OS ported to the IBM PDA, which Hyperion did and were paid for and then didnt deliver to AI, again, however this time its likely that the Freidens are on the hook as well.

Quote:

Amiga's evidence so far is like swiss cheese. Hopefully Hyperion's reply will fill in the (many) holes.

Sorry but there really arent holes. I mean if Hyperionsfight it AI didnt pay us all the money this is over, because AI's lawyer wired them payment in full in November, despite disagreeing that they owed them the money.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@scabit
Quote:

No, can't say as I have. Is it true that it indicates that $25000 was paid to Hyperion to buy back AmigaOs4 per the buyback clause, or is it just a receipt for $25k?

It's an itemized receipt that shows that Hyperion accepted payment for the buyback. The thing is, the payment on the receipt isn't for the full $25K, but only for $22,500. However taken as a whole, Exhibit J seems to be intended to show that Hyperion has been paid specifically for the buyback. It shows the memo from Kouri saying that he has decided to enact the buyback clause, that McBill sent a portion ($2500) to Hyperion already, that Itec was to chip in $20K, and that some other entity called Tachyon was to pay in another $2250. The money wasn't just some extra cash Kouri and Co. decided to chuck in Hyperion's general direction, it's exceedingly clear that Kouri & Co. executed the buyback.

_________________
Here for the whimpering end

@Tigger

Quote:

KMOS bought OS 4.0 from Itec on Oct 10, 2003, that sale is part of the March 15, 2004 documents in the Thendic/Amiga court case.

One question is if the OS4 Agreement rights can be transfered to another party without written agreement by all three of the original parties(Clause 7.12) Itec whould have had to have merged with Amiga INC #1 if there was no written agreement between the three to transfer to ITEC.

This could be the weak link in the whole chain from The Amiga side.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

The whole "(OEM) LICENSE AND SOFTWARE DEVELOPMENT AGREEMENT" between Amiga Inc and the partners is null and void due to a technicality on the first page.

Who can see it?

Cheers,
Tim

Quote:

Spectre660 wrote: @Tigger Quote: KMOS bought OS 4.0 from Itec on Oct 10, 2003, that sale is part of the March 15, 2004 documents in the Thendic/Amiga court case. One question is if the OS4 Agreement rights can be transfered to another party without written agreement by all three of the original parties(Clause 7.12) Itec whould have had to have merged with Amiga INC #1 if there was no written agreement between the three to transfer to ITEC. This could be the weak link in the whole chain from The Amiga side.

You keep going back to that, it doesnt matter. If Hyperion didnt believe that Itec had the right to buy the OS under the 2001 agreement, then they shouldnt have sold it to Itec. They did, they can't argue now that they didnt believe they had the right to buy it from them after they've had the money for 4 years now.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.