@AmigaHeretic

Quote:

But anyway, I'm sure you're right and Itec LLC has been in full business, working hard out there the past few years with hundreds employees, probably scouring the nation looking for the next hockey stadium to dump Tens of millions of dollars in to.

Well, that's not exactly what holding companies do, now is it?

Quote:

KMOS owns "everything" that was Amiga Inc. #1 according to Bill M. so WHAT in the world could Itec have to do with anything then regarding Hyperion in 2007?

Yes, that is the position that both Itec and KMOS have taken. Itec bought OS4 related IP from Amiga(W) in April 2003, then later "sold" it to KMOS (i.e. they took a ready-made shelf company and turned it into a almost-fully-owned subsidiary for the purpose of dealing with the OS4 related IP). In 2004, KMOS then acquired the rest of Amiga(W)'s IP, including the Amiga trademark, and later renamed themselves to Amiga Inc(D).

Hyperion, however, challenges all that.

What Hyperion cannot challenge, however, is

(a) Itec is a proper company. It is registered, it has all the necessary officers, and it has assets (it owns almost 7 million shares in KMOS)
(b) Hyperion signed a contract with Itec for the sale of OS4 in 2003. This contract has been produced and is uncontested, and it is SEPARATE from the 2001 contract.

So, adopting Hyperion's position, Itec may not own a whole lot --- almost 7 million shares in a company which has no assets --- but they still do have that contract. So they now asked Hyperion to comply with the contract, and deliver OS4. Hyperion refused. So Itec, the perfectly good company with a perfectly good contract is suing for performance.

Of course, Hyperion can argue that Itec sold its right under that contract to KMOS, and that Itec even acknowledged thusly (which presumably happened in reply to the "Am I allowed to deal with KMOS" mail from Ben Hermans) --- however, to do so would be to contradict their very own earlier argument.
Or they could argue that Itec never had any rights in the first place --- which is a tad difficult, given a simple two-page contract stating "you pay, we deliver" (and yes, Itec is aware of the "according to the 2001 agreement" and has already preemptively claimed that does not constitute an incorporation of said agreement).
Or they could argue that the 2003 contract was null and void because they, Hyperion, were in no position to enter into it. At which point they are royally f*cked, because Itec/KMOS spent considerable amounts of money based on that (then) mis-representation by Hyperion, and would be able to recover such damages from Hyperion.


The 2003 contract is really a millstone around Hyperion's neck. It's concise, clear, and does not have any warranties or anything else from Itec's side. Just the need to pay the money (which Hyperion themselves has put into evidence Itec has attempted). It's a simple contract between two parties, one of which has done what was called for, and the other has not. No amount of saying "But they are all crooks!" can change that, especially when the "they" mostly have nothing to do with Itec.

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

Interview with KMOS CEO Garry Hare (25-Mar-2004)  


Amigaworld.net has obtained a lengthy interview with KMOS CEO Garry Hare.
By way of introducing him to the wider Amiga community and to clear up some persistant long term queries. Garry has kindly offered to answer these questions and more below.



Question 3.3: Hyperion has been doing an amazing job of re-inventing the Operating System, how would you describe the situation in terms of KMOS, Hyperion and the OS?

Garry: We are partners. I look forward to working with Ben and the people at Hyperion.

Question 3.4: Eyetech has done a marvellous job in providing the A1 and microA1 boards, obviously they have a stake in the future of the OS. The community has long been assured that Eyetech, Hyperion and Amiga Inc. are working together in this venture, now that KMOS is involved has anything substantially changed?

Garry: No. Nothing should change. Eyetech, Hyperion and KMOS have a common interest. We'd like to build an attractive market for current, and likely, future products. Alan and Ben know that, within limits, I will help in any way I can. As I didn't anticipate "going public" now, my schedule until about June, or so, is a bit of a mess. It will be difficult for me to participate in conferences and the like in the near term. I don't think that's important. Eyetech and Hyperion are doing just fine without my involvement.

Question 3.5: Would you like to make some comment on Hyperion and Eyetech's position in regard to KMOS, at least as you understand it?

Garry: We are commercial partners.

Last edited by Spectre660 on 13-Jul-2007 at 04:57 AM.
Last edited by Spectre660 on 13-Jul-2007 at 04:56 AM.

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

@umisef

Quote:

The 2003 contract is really a millstone around Hyperion's neck. It's concise, clear, and does not have any warranties or anything else from Itec's side. Just the need to pay the money (which Hyperion themselves has put into evidence Itec has attempted). It's a simple contract between two parties, one of which has done what was called for, and the other has not. No amount of saying "But they are all crooks!" can change that, especially when the "they" mostly have nothing to do with Itec.

See pdf no 26:page 17,Lines 12-23 and page 18,lines 1-8.

Arguments made before the New York lawsuit. Will they hold Up ?

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@Kronos

Quote:

- outsource the grass-chewing to a goat

Thanks Kronos, that's the best write up I've read so far.

@Thread
Any one else notice the "Submit a question to Bill" over at AmigaWeb.net? Seems like unusual timing to be offering up this service again.

Plaz

http://www.amigamccc.org/journal/0409hare.htm

Given at the Amiwest 2004 Banquet, July

This is an interview that was transmitted on 07/25/04 from Amiwest 2004 with Dr Garry Hare, CEO of KMOS. The interviewer was Bill "TekMage" Borsari.


Q: Last year you purchased Classic OS from Amiga Inc? Why did you buy Classic?

KMOS did not buy the OS from Amiga, but from ITec. Amiga company was not structured to build in additional money. KMOS was formed around a notion with partners and we needed a light weight secure OS. AmigaOS represented that possibility. KMOS took the OS and with partners to figure out where it can be in the future.

We didn't jump at Amiga Inc. but two things made it interesting, Amiga has tremendous value in the actual brand. We didn't want to just licence it. In addition we wanted the shortest route to support developers. Our acquisition of Amiga can rekindle developer support.



Q: The desktop Amiga is important, do you see it as necessary for development of the Amiga?

For now, Amiga DE is separate product and different market. The desktop OS is not completed even with 4.0. These features and functions will be driven by partners, in collaboration. We know where they want to go and we want to help them get there.



Q: Hyperion and Eyetech are partners, you own licence agreement. How do you see your relationship?

No alterations to agreement at all.

Q: On the subject of further funding to Hyperion for further OS development.

No alterations to original agreement.

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

@Lou

Quote:

Hyperion should terminate the contract with Amiga Inc. (W) and Eyetech for breaches.

I think this sounds logical, but it may also be a point that hurts Hyperion. If they terminate the contract, doesn't it cut them off from the insolvency clause? Since they haven't tried to terminate, Amiga Inc (or Itec, who can tell now) may try to use this point to prove that Hyperion's plan was always to gain the OS rights. I wonder if it's too late to terminate? Though in my limited imagination, I don't know if I see how that would be a good move at this point.

Plaz

@AmigaHeretic

Quote:

Itec doesn't even exist. I doubt it ever "really" existed. There problem will be that there is no paper trail showing what ever happened to Itec.

I think they only have to exist on paper and pay their fees and taxes every year. I used to have a very small business and license. It only cost a few hundred dollars to keep it "active". If Itec has kept up with such things even if it's been dormant, then they may be trouble. If they have not stayed legit, Hyperion should be able to burst that bubble easy enough.

Plaz

Quote:

fairlanefastback wrote: @Tigger Well this is certainly bloody obvious Tigger, that you don't see how anyone can think differently than you, on a number of topics. I know you want to beat some sense into people from your perspective. But that dosen't make you right about the issues let alone your methodology to get your perspective across.

Again with the personal attacks and the off topic posting. This thread is about the lawsuit between Itec and Hyperion being filed in New York. Please explain to me the rational behind a judge deciding that Hyperion does not have to deliver the OS to Itec. Throwing out McEwen, KMOS, AI(W) debts etc as things that occurred at some time all doesnt matter in the NY case. We have a simple two page contract, we have one party has completely fulfilled its portion, we have the second company not fulfilling its portion. Even if Hyperion can prove somehow that they cannot comply with the contract (the Eyetech angle as has been discussed) the penalties for that will be large, Hyperion was asking for 3X damages in Washington, 3X damages plus expenses and losses here will hit Hyperion for 6 figures minimum and could hit 7. I'm fairly sure that Bernd guessed this was likely to happen when #43 appeared, I guessed the check was a trap as well, and said as much, and gee thats what it was. Hyperion now has to explain to a judge why they signed a contract got paid the money and didnt comply. Its a pretty simple case, there isnt alot of leeway here, and the events in this case will help the Federal Case in Washington or maybe even make it unnecessary.
-Tig

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

@umisef

Quote:

This contract has been produced and is uncontested, and it is SEPARATE from the 2001 contract.

Wait, it does sound like you're calling Bill M. a liar.

Uncontested, lol!!, except by Bill M. himself who says KMOS bought that 2003 contract from Itec. I could have swore he was just in a court of law sueing someone trying to get the source code to AmigaOS 4 even based on such claims.

Now all of a sudden KMOS "magically" doesn't own the 2003 contract? It has magically reverted back to Itec, oh I see, because KMOS lost 3 weeks ago?

Yeah, Amiga Inc. has a slam dunk! Thumbs up!!

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@Plaz

Quote:

I think they only have to exist on paper and pay their fees and taxes every year. I used to have a very small business and license.

Yeah, but do you see where I'm getting at.


~3 Weeks ago Amiga Inc. #2 (KMOS) -lawsuit funded by Petri

They say they own the 2003 contract and have photo copies of it their court documents, they've always said they've owned the 2003 contract, that they "got" everything Amiga from Amiga Inc#1->Itec->KMOS->to the now Amiga Inc. #2.


Now their court case pretty much goes tits up. We see all the "Round 1 goes to Hyperion" threads etc.


Now magically, out of NOWHERE, after all these years....

Itec owns 2003 contract?? and we have -lawsuit #2 funded by Petri


That's what I call a "LIE" Either they lied ~3 weeks ago in the first case that Amiga Inc. #2 owned the 2003 contract when they sued to get source code or they are lieing now that Itec LLC has owned the 2003 contract the whole time.

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Back in my day, we didn't have water. We only had Oxygen & Hydrogen, & we'd just shove 'em together

@fairlanefastback

Quote:

Reaction from intial usage by Tigger:

So it's as I said, he related this story from the conference to illustrate his point.

Quote:

Well then why are you worrying about my direct and blunt formulations? ;)

If after ignoring them nothing else remains, reading the post is a waste of time.

@Tigger

Its not one and the same company. Itec and AI(W) are different companies, Itec signed a deal with Hyperion, they need to carry out the contract or suffer the penalties for not doing so. Noone forced Ben to sign the contract, why do you think Hyperion should not have to carry out the contract they signed with Itec?

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The Illusion of Choice | Am*ga

@Tigger

when Hyperion said they hadnt paid them enough then sent another check for the full amount.

_________________
Indigo 3D Lounge, my second home.
The Illusion of Choice | Am*ga

Somebody help me here.

Itec "Gets" Amiga (W)'s rights to OS4 agreement some how. 2003 ?
Hyperion agrees to sell watever rights they can to OS4 Agreement for $25,000.00. in 2003 ?
ITEC and others pay Hyperion $24,750.00 of the $25,000.00 . in 2003 ?
ITEC then sell Hyperion's rights to OS 4 which have not completley been paid for to KMOS. in 2003 ?
KMOS continue on as if they have only aquired AMIGA (W)'s rights calling Hyperion and Eyeteck Ltd their "Partners". in 2004 ?

seems to be one big mess.

Did ITEC sell what they had not fully paid for and therefore did not own.
Did ITEC ever request the OS 4 sources prior to selling to KMOS ?
This request may have received the "You have not fully paid response".
KMOS/Garry Hare stated that there were no changes to the OS4 contract in 2004.
Would this indicate that they realized that the "Buy-in" was never completed that they only "got" Amiga (W)'s rights and not Hyperion's yet ?.

Edit


The Dilema of ITEC's law suit is that until the courts rule that their sale of OS 4 rights to KMOS is Invalid then it is assumed that they sold the rights to KMOS. They have thus at this time have no right to sue Hyperion.

Last edited by Spectre660 on 13-Jul-2007 at 11:50 AM.

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@AmigaHeretic

Quote:

Now their court case pretty much goes tits up. We see all the "Round 1 goes to Hyperion" threads etc.

Round one shows that AI.D was ill prepared for court . . .

Quote:

Now magically, out of NOWHERE, after all these years.... Itec owns 2003 contract?? and we have -lawsuit #2 funded by Petri That's what I call a "LIE" Either they lied ~3 weeks ago in the first case that Amiga Inc. #2 owned the 2003 contract when they sued to get source code or they are lieing now that Itec LLC has owned the 2003 contract the whole time.

What do you expect? If you say AI.D isn't the owner then ITEC by rights can claim that they are, because the OS & its IP came from them. So doing battle with them is the next logical step in this process.

Here's the bad news. ITEC has the papers for transfer. AI.W no longer exists. So, that paper work that ITEC has will be considered valid until proven otherwise. So, when Hyperion goes to court in NY and says ITEC is not the owner, the court will ask for proof. If Hyperion can produce proof, then YAH! If they can't they loose, end of story. It will not be up to ITEC to prove they are the owner, it will be up to Hyperion to PROVE they are NOT ! ! ! The 2001 contract is not what will be in play, its the 2003 contract. Hyperion is in trouble . . .

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@pixie

Quote:

pixie wrote: @Tigger Its not one and the same company. Itec and AI(W) are different companies, Itec signed a deal with Hyperion, they need to carry out the contract or suffer the penalties for not doing so. Noone forced Ben to sign the contract, why do you think Hyperion should not have to carry out the contract they signed with Itec? If shown to be valid....

How is the contract going to be shown to be invalid Pixie?
-Tig

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

@wolfe

Quote:

Here's the bad news. ITEC has the papers for transfer. AI.W no longer exists. So, that paper work that ITEC has will be considered valid until proven otherwise. So, when Hyperion goes to court in NY and says ITEC is not the owner, the court will ask for proof. If Hyperion can produce proof, then YAH! If they can't they loose, end of story. It will not be up to ITEC to prove they are the owner, it will be up to Hyperion to PROVE they are NOT ! ! ! The 2001 contract is not what will be in play, its the 2003

if I can quote Myself

"The Dilema of ITEC's law suit is that until the courts rule that their sale of OS 4 rights to KMOS is Invalid then it is assumed that they sold the rights to KMOS. They have thus at this time have no right to sue Hyperion."

Last edited by Spectre660 on 13-Jul-2007 at 12:28 PM.

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@pixie

Quote:

pixie wrote: @Tigger when Hyperion said they hadnt paid them enough then sent another check for the full amount. Which would mean squat if the software is set to be complete before the 6 months clause. The value of the product is explicitly tied to time, passing it and you're out of contract definition and thus invalid...

We were done in December of 2004? Obviously they have thrown that out, I dont think it can bear serious scrutiny. Bernd has given a pretty good teardown of the arguement with regard to completion of annex 1 (#1 on my list). I break it down to 4 issues that I dont think they can overcome.

1) Items called out in Annex I were not completed in 2004, in some cases are not complete now.
2) AI, the community and the current customers were never notified of completion at that time or any future time before december 2006.
3) No payments to contractors that were linked to completion have been paid
4) Prior to the lawsuit, Hyperion has treated Itec and KMOS as the successor companies and has asked for money for the buyback despite it being past the buyback times clause if we are to believe the current timeline (this also would be fraud btw).

Do you honestly believe OS4 was complete in December 2004?
-Tig

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@Plaz

Quote:

Plaz wrote: @AmigaHeretic Quote: Itec doesn't even exist. I doubt it ever "really" existed. There problem will be that there is no paper trail showing what ever happened to Itec. I think they only have to exist on paper and pay their fees and taxes every year. I used to have a very small business and license. It only cost a few hundred dollars to keep it "active". If Itec has kept up with such things even if it's been dormant, then they may be trouble. If they have not stayed legit, Hyperion should be able to burst that bubble easy enough. Plaz

This voids all lawsuits. Also, since Hyperion have OS4 finished and Amiga/ITEC/KMOS want it, let them figure out who has proper ownership of the OS then sign a new contract that doesn't screw Hyperion.

Either way, nothing stops Hyperion from releasing the OS under a different name with parts that aren't derivative work. ExecSG may not be considered derivative work at this point that it exists today since it offers memory protection and a new memory allocation system. Derivative means enhancements or additions, ExecSG can stand on it's own merits. A kernal is a kernal. Isn't the Amiga kernal a derivative of TriOS or whatever it was called... Good luck to Amiga proving that ExecSG is a direct derivative of Exec.

Once the contract is terminated by Hyperion (even though it was supposedly terminated by Amiga(D)/KMOS) everyone will be forced back to the negociations table.

Infact, Hyperion should accept the contract termination unless that termination holds them liable for anything. If so they should continue to fight KMOS' termination and execute their own as well as a lawsuit for damages incurred by Hyperion because of Eyetech and Amiga's breaches. This way they can recover their costs and pay the developers and still be at a new negociations table for the distribution of OS4.

Quote:

Spectre660 wrote: @wolfe "The Dilema of ITEC's law suit is that until the courts rule that their sale of OS 4 rights to KMOS is Invalid then it is assumed that they sold the rights to KMOS. They have thus at this time have no right to sue Hyperion."

Actually Itec addressed that in there court papers. They have complete right to sue Itec for completion of the contract. Hyperion has taken a tact that they do not have to deliver the OS to KMOS under the 2003 contract because they did not agree to the transfer to KMOS. They can say that, but that does not mean they do not have to complete the contract at all, especially after taking the money. If Itec didnt do this (and they were not related companies), it is very likely that KMOS would sue Itec over non-delivery of the OS and easily win. Itec's suit in NY protects Itec from a lawsuit by KMOS or KMOS's creditors.
-Tig

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