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| Lawsuit: Evert Carton on the settlement agreement from 2009|
As requested by Cloanto and the Amiga parties, Evert Carton made a deposition in their lawsuit with Hyperion, the company he was a co-founder of. Plaintiffs' aim is to clarify the original intention of the settlement agreement (PDF file) signed in 2009 by Amiga Inc. and Hyperion.
The agreement's interpretation on the usage of trademarks and the source code of AmigaOS 3.1 is disputed (amiga-news.de reported), especially its further development for Motorola 680x0-based Commodore Amiga computers in the form of AmigaOS 3.1.4 and meanwhile also AmigaOS 3.2, respectively. Going by the plaintiffs point of view, Hyperion is cashing in on it unlawfully; a preliminary agreement to tolerate the distribution of AmigaOS 3.2 if it was made available for free was withdrawn in January.
Evert Carton was - besides Ben Hermans, who he met when they lived in the same dormitory - one of the two co-founders and managing partners of Hyperion, which had been a general partnership initially (Dutch: "Vennootschap onder firma", abbreviated VOF). Since 2003 and still at the time of the settlement agreement with Amiga Inc, Evert Carton was the sole director, since Ben Hermans prioritised his main employment at a law office. In 2011, Evert Carton announced that he had stepped down from Hyperion. Finally, in 2018, he also waived his remaining shares, as mentioned in his letter to the judge in which he expressed his willingness to be a witness (PDF file).
In his deposition (PDF file, 444 pages including supplements) Evert Carton confirms the agreement's interpretaion by Cloanto and, meanwhile, Mike Battilana's separate company Amiga Corporation, repectively (formerly known as C-A Acquisition Corporation). While active negotiation with Amiga Incorporated's lawyer would have been conducted by Ben Hermans as Hyperion's counsel, he himself would have been part of these talks as well. Furthermore, the settlement agreement would have been signed by him as the company's sole director and owner of 97 % of the shares at that time. According to Evert Carton, in 2009 Hyperion would have considered the Amiga market for AmigaOS 3.1, i.e. the operating system for 680x0 CPUs, to be dead. Their interest there would have been AmigaOS 4 only, i.e. the operating system for PowerPC CPUs.
The latter previously being bound to a specific processor architecture would have been the main reason for Hyperion to negotiate on a settlement agreement with Amiga Inc., allowing them to port AmigaOS 4 to any other platform as well. Accordingly, the resulting licence for trademarks would have been intended for marketing of AmigaOS 4 only, any other usage wouldn't have been up for debate at all. While there had been an additional plan to make use of the source code of AmigaOS 3.1 for embedded systems as well - just for exemplification a fridge is mentioned -, in this case the kind of operating system is not visible to the customer, thus it wouldn't have been marketed as "AmigaOS" there. Also selling Amiga fan merchandise like t-shirts would not have been an intention back then.
Key elements of Evert Carton's deposition are summarised in plaintiffs' motion for leave to file (PDF file).
Furthermore, Hyperion's lawyer also came into play during the testimony conducted via video conference - as in a cross-examination conducted in presence before the judge. The latter, on the other hand, targeted the original agreement between Hyperion and Amiga Inc. from 2001, when it was about the development of AmigaOS 4 as operating system for Eyetech's PowerPC computer called AmigaOne. This provided that in the event of Amiga Inc.'s insolvency, Hyperion and Eyetech would have been granted the exclusive right to further develop and market AmigaOS itself, relating to AmigaOS 3.1 and its further developments, including but not limited to AmigaOS 3.5 and AmigaOS 3.9. According to the lawyer's reading, this clause was triggered by the insolvency of Amiga Inc. or the non-successful full payment of the agreed 25,000 US dollars to Hyperion, so that Hyperion's development and distribution of AmigaOS 3.1.4 and 3.2 would be legal. Evert Carton, however, countered that the 2001 contract had been rendered irrelevant by the 2009 dispute resolution agreement. Finally, in the third round of questions, Cloanto's lawyer underlined this by referring to the relevant clause of 2009, that all previous agreements concerning the subject matter of the contract were cancelled by the dispute resolution agreement.
In addition, when reading Everton Carton's statement, one is struck by his astonishment that - while the conversion of Hyperion's legal form from a general partnership (Dutch: VOF) to a cooperative company with limited liability (Dutch: "Co÷peratieve Vennootschap met beperkte Aansprakelijkheid", CVBA; as the third partner required for this, Timothy de Groote, introduced by Ben Hermans, joined with 3 per cent of the shares, while Evert Carton and Ben Hermans accounted for 49 and 48 per cent, respectively) did fall in the same period of a few weeks as the signing of the settlement agreement with Amiga Inc. - he had signed for "Hyperion CVBA" at a time when, according to his recollection, the company was still formally a VOF. However, this aspect does not seem to be relevant, since it was not taken up by Cloanto's lawyer, and the judge in the 2009 court settlement did mention the change of legal form ("Hyperion [Entertainment] VOF, now known as Hyperion Entertainment CVBA"). Whether, conversely, Hyperion's lawyer could take this up in order to declare the settlement of the dispute null and void, and therefore brought the original contract of 2001 with its insolvency regulation into play, remains open, but is likewise unlikely due to the judicial confirmation of the settlement reached at that time.
In addition, it emerges from the questioning that the costs of Hyperion's legal dispute with Amiga Inc. were borne by Evert Carton to a considerable - if not decisive - extent: partly in the form of the income generated by him outside the Amiga area with his actual activity for Hyperion, partly by a friend's loan of 100,000 Euros, which he later repaid himself. Investments that, according to him, he never recovered. (snx)
[News message: 18. Jul. 2021, 16:49] [Comments: 0]
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