amiga-news.de - Amiga Documents: Evidence of irregularities / Statement by Mike Battilana

07.May.2023
Amigaworld.net (forum)

Amiga Documents: Evidence of irregularities / Statement by Mike Battilana
On the Twitter account "Amiga Documents" further documents concerning the parties in litigation Hyperion Entertainment CVBA and Amiga Corporation have been published.

Among them is especially the proof (PDF file) of financial irregularities at the original, Belgian company A-EON Technology CVBA, which led to the withdrawal of the main shareholder of Hyperion Entertainment, Ben Hermans, from the joint company A-EON Technology and to the foundation of the current, British company A-EON Technology Ltd. (amiga-news.de reported), and later already confirmed by Trevor Dickinson.

The now published evidence is the agreement, dated December 17, 2010, between the three directors at the time, Trevor Dickinson, Anthony Moorley and Ben Hermans, on how to deal with "certain financial problems and irregularities". These included the resignation and relinquishment of all banking powers of Ben Hermans relating to A-EON Technology, the reimbursement of funds unauthorizedly withdrawn from A-EON Technology's accounts as well as those raised on behalf of A-EON Technology for its beta testing via Hyperion's PayPal account, and the granting of various rights of companies in which Ben Hermans has an interest in favor of A-EON Technology. The latter included, for example, the worldwide free use of the trademarks AmigaOne, AmigaOS (and associated with it the name AmigaOS 4 including future updates) and the Boing Ball.

However, the actual repayments remaining after deduction of these non-cash assets in the form of usage rights were comparatively low. The agreed repayment plan provided for 25,000 euros plus a final payment of an estimated further 7,500 euros as well as further fees and expenses in connection with the investigation and cleanup of the irregularities.

In a further - but so far unsubstantiated, being an announcement initially - tweet Amiga Documents sets out the points on which Ben Hermans, Trevor Dickinson and Mike Battilana are said to have initially agreed in August 2019 to settle the dispute, but which were then not honored. In fact, there had been settlement negotiations at the time. Key points had allegedly been:

Suspend legal action
OS4 Hyperion
Pre-OS 3.1.4 Amiga Inc.
OS 3.1.4 5-year exclusive Hyperion
After 5 years OS 3.1 open source potential
Hyperion could continue to develop - Classic Plus pack?
Possible cash payment to shorten the 5 year exclusive period

Finally, a third tweet (PDF file) originates from the legal dispute. It is a statement by Mike Battilana on the formation of his C-A Acquisition Corporation, whose inclusion in the first legal dispute, which has since been decided in favor of Hyperion, was rejected by the court in exactly the same way as that of Cloanto, which has led to further proceedings that are currently still ongoing.

The background to the above-mentioned ruling in favor of Hyperion was essentially that, in the opinion of the court, only C-A Acquisition Corp. would be entitled to sue as a result of the transfer of rights, which is why the actual points of claim in the form of the further ongoing legal proceedings remain open. Against this background, the timing of the transfer of rights from Amiga Inc. by Mike Battilana proved to be unfavorable for him.

His statement of April 24, 2023 does not contain any fundamental news, but it explains that Mike Battilana had no influence on that point in time. Since his statements represent a generally understandable course of the takeover of the rights of Amiga Inc. even without knowledge from the court proceedings - admittedly described from his personal point of view - we have translated them in our German news-item into German. Here instead we just reproduce the original text for your convenience, so that you can translate it automatically in case English is not your native language:

"I, Michele 'Mike' Console Battilana, declare under penalty of perjury pursuant to U.S. Code § 1746 as follows:

1. I make this declaration based on my personal knowledge, except where I have indicated otherwise. If called as a witness, I would testify competently and truthfully to these matters.

2. I am President and sole shareholder of Cloanto Corporation. I founded Cloanto Corporation with other partners on June 15, 1998, in Las Vegas, Nevada, where the company still has an accountant. I chose Nevada because of local information technology contacts and friends. The purpose of the company was to facilitate software development work, and sales to larger US clients. The company was immediately independent and self-sufficient. Like any other company, it has a bank account, enters into contracts, pays expenses, and files tax returns.

3. In my early years as an Amiga developer (1986-1997), I was not aware of a 'tortured history of litigation'. My relationship with all Commodore and Amiga parties was always an amicable and constructive one. We were quite successful developers. Our software was bundled with Amiga computers. Before this case started in 2017, I was never embroiled in a lawsuit but for proceedings in the United States Patent and Trademark Office (all but one of which involved Hyperion), and I knew of only two Amiga-related lawsuits. Mr. Ben Hermans was involved in both, first on the side of Amiga, Inc. then against it. Mr. Hermans describes himself as 'a member of the Antwerp Bar Association as well as an Intellectual Property litigator with over 20 years of relevant experience'. The word 'litigator' is in Mr. Herman's professional DNA, not in mine. I know that beyond being the director of Hyperion, he also owns more than 90% of the company, directly or through his law firm Ben Hermans BV.

4. I believe that the following statement in Ben Hermans' Declaration in support of Hyperion's Motion for Summary Judgment (Dkt. 106, 7) does not facilitate an understanding of the case (or the 2019 acquisition) because it is simply false: 'Since the 1980s, the parties to this lawsuit have been litigating ownership and licensing disputes related to the Amiga operating system software.' Not only did the first lawsuits start only in the 2000s (not the 1980s), but the first agreement that Hyperion's predecessor, Hyperion VOF, entered into with Amiga, Inc. was in 2001. Moreover, the 'Amiga Parties' in the 2009 Settlement Agreement were not parties to this litigation when it started in 2017.

5. I believe that the Amiga Parties indeed considered all litigation to have ended for good with the 2009 Settlement Agreement, and had no intention of seeing it all flare up again. This all changed in March 2018, when Hyperion sued the Amiga Parties again (rather than the other way around). I believe that being dragged again into litigation, and the fact that we were on the same side of the case caption, brought us closer, and facilitated acquisition talks. Our first conference call discussing acquisition ideas took place in April 2018, i.e., the month after Hyperion's complaint against the Amiga Parties.

6. As my past history shows, the acquisition had a passion and commitment for Amiga at its core, and was certainly not meant to complicate the case. I never expected that it could be construed in this way. Four years later, due to this case, Amiga trademark and copyright ownerships and contractual rights remain more fragmented than they need to be. Out of an abundance of caution, we also have not yet set up the not-for-profit entity which was explicitly mentioned in the 2019 acquisition agreement, and which I always intended to be the entity to channel the long-term preservation efforts of Commodore/Amiga history and culture.

7. I had big hopes, but no actual control over the completion of the acquisition until the very day it actually happened on February 1, 2019. The timing of negotiations, as well as consummation of the purchase, were controlled by Reed Smith, which represented Amiga, Inc.

8. To close the Asset Purchase Agreement, Cloanto Corporation agreed to pay, and did pay, a large sum of money for the Amiga assets. In addition, both Cloanto Corporation and C-A Acquisition Corp. indemnified the Amiga Parties against all lawsuits, damages, and losses, including this one.

9. Because I did not know when the acquisition might occur, I delayed forming C-A Acquisition Corp. until it became necessary. C-A Acquisition Corp. was formed specifically for the purpose of holding the transferred trademarks and related rights.

10. During the long negotiations, I could not divulge to anyone that they were happening. Any number of Amiga-interested people, some who were quite wealthy, could have outbid me. Hyperion, too, could have opened their own negotiations and outbid me. For this reason, I did not and could not divulge the negotiations to anyone but my own attomeys.

11. Since this case started, I made numerous attempts to reach a settlement, including traveling on a number of occasions to meet Hyperion sharebolders Mr. Hermans, Mr. De Groote, and Mr. Dickinson, and to discuss settlement. When Hyperion confirmed to the Court on January 20, 2021, that 'the Parties reached the terms of settlement on the main agreement' and that only ancillary matters (i.e. some exhibits) needed attending, I felt an immeasurable sense of relief. Unfortunately, several days later Mr. Hermans pulled away from our agreement, providing a string of excuses unrelated to the actual agreed-upon terms.

I hereby state under penalty of perjury that the foregoing is true and correct to the best of my knowledge." (snx)

[News message: 07. May. 2023, 13:19] [Comments: 0]
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