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Amiga Inc v. Hyperion VOF Doc. 26 I

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8 LINITEDSTATES DISTRICT COURT WESTERNDISTRICT OF WASHINGTONAT SEATTLE 9

l0 , INC., a Delawarecorporation, No.07-0631-RSM ll DECLARATIONOF EVERT CARTON 12 V. IN OPPOSITIONTO AMIGA DELAWARE'SMOTION FOR l3 HYPERIONVOF, a Belgiancorporation, PRELIMINARY INJUNCTION

14 Defendant.

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t6 Evert Carton,under penalty of perjury, declaresand statesas follows:

t7 1. I am ManagingPartner of Hyperion VOF, a softwarecompany located in

18 Belgium.I currentlyreside in Belgium.I am Belgianand US citizen.l am overthe ageof 18, t9 and I am competentto testify. 20 2. I arn36 yearsof age,born 24. October.1970. in Durham.NC. I grew up in 2l Belgium. 22 3 I graduatedas a MechanicalEngineer. I haveworked in variousIT positionsin z) the pharmaceutical(clinical trial setupand instrumentinterfaces) and retail sector 24 (programmingcustom IDMS databaseapplications in PLll on Amdahl mainframecomputers). 25 I have worked as an independentIT-consultant through Hyperion, in the steel(business 26 Lew OrprcESoF - DECLARATION OF EVERT CARTON I Wrr,rmrraA. KrNseL,PLLC MARKET PLACE TOWF-R 2015 First Avenue. Suite,140 SEATTLE,WASHINGTON 98I ]I | 206)706-8 I 48

Dockets.Justia.com Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 2 of 24

I intelligence)and telecom-industry (business intelligence and Web-technologies). Hyperion has

2 currently secureda position for me as an independentcontractor working as a system/

a J architectat the largestBelgian mobile telecommunicationsoperator.

4 4. My skillsrange from basicknowledge to proficientlevel in several

5 programminglanguages (tag">C, g++, Java.Python, Perl, SAS ...). I workedon differentoperating

6 environments,ranging from (mainly) systems(HP-UX. Solaris/SunOS,) to

7 mainframesystems.

8 5. I foundedHyperion VOF, betterknown as .in February

9 1999with Mr. Ben Hermans,whom I met duringmy collegeyears. Mr. Hemranslater opted to l0 pursuea legal career. I am to this dateManaging Partner at Hyperion.The company ll specializesin 3D graphicsand 3D driverdevelopment, firmware development for embedded l2 systems.IT consultingand the conversionof high quality entertainmentsoftware from

13 Windowsto nicheplatforms including Amiga, Linux (x86,PPC)and MacOS.

I4 6. Basedon my generaleducational background, my experiencein the industry, t5 and rny specificknowledge of eventsrelated to Amiga, I havepersonal knowledge of the

16 mattersstated herein. t7 7. The "Amiga" line of computerswas launchedon the 23rd of July 1985 and 18 subsequentlyacquired and marketed by CommodoreBusiness Machines (CBM or Commodore 19 who had previouslydeveloped and marketedone of the most usefulcomputers of all time, the 20 Commodore64). 21 8. Prior to this computerswere aimed at a relativelylimited audience - theymight 22 be seriousbusiness machines with simpletext displays,or they might be gamesmachines with ZJ

24 crudegraphics, a few colors.basic sound and limited ability to do much beyondplaying games. 25 The Amiga wasan entirelydifferent machine with a far wider rangeof capabilities.Combining 26 the power of a businessmachine with market-leadingvideo and audio capability,the Amiga Lew OrnrcESoF - DECLARATION OF EVERT CARTON 2 WrllnuA. KrNssr-,PLLC MARKET PLACE TOWER 2025 First Alenue- Suite440 SEATTLE. WAST.IINGTON98 I 2 I (206)706-81,18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 3 of 24

I was a hugely capableand flexible machineand introducedthe world to the conceptof

2 "multimedia".

a J 9. The hardwareof the Amiga was basedon proprietarychipsets covered by 4 numerouspatents which handledgraphics and sound. Generalpulpose computing power was 5 deliveredby a Motorola68000 series (6SK) processor (CpU). 6 10. The Amiga operatingsystem or AmigaOS was designedfrom its inceptionas a 7 true multi-tasking,multi-media . This combinationof tightly coupled 8 proprietaryhardware and software(AmigaOS) produced a very fast.powerful and easyto use 9 computingplatform. l0

l1 1l. In 1994Commodore Business Machines filed for bankruptcy. The then current

t2 Amiga modelswere the low-endAmigal200 andthe high-endAmiga 4000T. Both machines

13 were still equippedwith proprietarychipsets developed in-house by Commodoreand powered

14 by Motorola68000 series CPU's runningat up to only 25 MHz (comparableto Intel's486

t5 cPU's). Thesemachines were bundled with Amiga os 3.0 or Amiga os 3.l. t6 12. Following the 1994bankruptcy the companyand its assetschanged from hand 17 to handwith subsequentacquisitions of the subsidiary"Amiga Technologies"by the German l8 companyEscom AG (1995-1996)and in 1997by the U.S. computermanufacturer Gateway l9 (2000) (NYSE:GTW). Neither Escomnor Gatewaymarketed any new Amiga hardwarealbeit 20 Escomsucceeded in restartingproduction of the existingmodels using left-over parts 21 manufacturedfor Commodore.During the Gatewayera only existingstock of unmodified 22 'sand Amiga 4000produced by Escomwere sold. ZJ

24 13. In I 998 Amiga Inc. (at thattime a fully ownedsubsidiary of Gateway)entered

25 into an agreementwith the Germancompany Haage & PartnerGmbH (www.haage- 26 Lew OnErcESoF DECLARATION OF EVERT - CARTON 3 Wrllrelr A. KrNsel, pLLc MARKET PLACE TOWER 2025 FrrstAvenue. Suite440 SEATTLE. WASHINGTON 98 I 2 I c06)706-81,18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 4 of 24

I partner'com)for the developmentof Amiga oS 3.5, the first updateof the Amigaos sincethe 2 demiseof Commodorein 1994.

J 14. Under the agreementbetween Amiga Inc. and Haage& partner,Amiga was 4 requiredto pay an undisclosedbut sizeable upfront amountto Haage& partner. In 5 return, Haage& Partneracted as leaclcontractor for the developmentof 6 Amiga oS 3.5 and contracted with dozensof independent subcontractorsin order to produce the Amiga os 3.5 update. An example of one of thosecontracts with the independent 8 subcontractorsis attachedhereto as Exhibit1. 9 15' l0 Under the agreementwith Amiga Inc., partner Haage& was entitledto market and distributethe resulting ll Amiga os 3.5 softwareitself, partner with Haage& collectingall revenues l2 and with Amiga receivingonly a per unit royalty. pursuantto the agreements concluded l3 betweenHaage & Partnerand its subcontractors.said subcontractorssimilarly 14 received a per unit royalty from Haage& Partner usually with a minimum royalty guarantee. l5 Amiga os 3'5 wasreleased in octoberof 1998. There wasno directcontractual link between l6 the subcontractorsand Amisa. t7 16' In Decemberof 1999Gateway soldits Amiga subsidiariesto l8 a groupof venture capitalistsi'e' N'Y' basedInvisible Hand and Netventures (based 19 in Holland)for 4.5 million usD' Following the acquisition,the new management 20 of the company(with william McEwen as cEo and Barry Jon Moss as cro) immediatelyrefocused 21 the company,sstrategy and resourceson the softwaretechnology 22 frorn the u.K. basedcompany TAo (www.tao_ sroup'com)which was ZJ entirelyunrelated and incompatible with Amigaos andwhich to this 24 datestill servesas a deliveryplatform for Amiga'scontent for mobiledevices (largely games): 25 theAmigaDE and AmigaAnywhere products. 26

DECLARATION OF EVERTCARTON - 4 Lew OrnrcESoF WrrlmvA. Krrusnl, pLLc MARKETPLACE TOWER 2025Frrst Avenue, Suite :1.10 SEATTLE,WASHINGTON 98 I 2I (206)706_8148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 5 of 24

1 17' In late 1999 andalready under the new management,Amiga enteredinto

2 anotheragreement with Haage & Partnerin order to developAmiga OS 3.9, anotherupdate of J the old Amigaos' The terms of the 1999agreement between Amiga aresimilar to thoseof the 4 1998agreement' As with Amiga oS 3.5.Amiga oS 3.9'snew functionalitylargely consisted 5 of materialslicensed from third party developers.once again.IJaage & partnerwas entitledto 6 marketand distribute Amiga - oS 3.9 itselfand collect all revenuesfrom saleswith a per unit

royalty paymentto Amiga and Haage& Partner'sthird party suppliers 8 who had no direct contractuallink with Amiga. 9 l8' In orderto "appease 10 the loyal Amiga enthusiasts"(Moss. Declaration in support of the plaintiff, pat.7) in 2000 l1 Amiga decidedto contractdevelopment of Amiga oS 4.0 out to

an outsideparty. Amiga OS 4.0 t2 would heraldthe switch away from the outdated6gK seriesof l3 MotorolacPU's which were limitedto 50-66MHz to the muchmore modern cpu,s t4 developedand marketed by IBM and /Freescaleand which until very recentlywere l5 alsoused by Apple in its line of computers.The PowerPCCpU's areRISC CpU,s (reduced I6 instructionset) which are entirelyincompatible with the Motorola68K seriesof CISC CpU,s t7 (complexinstruction set). l8 l9' Amiga OS 4'0 was initially intendedto run on third-partyadd-on hardware for t9 the Amiga 1200 andAmiga 3000/4000equipped with PowerpCCpU's which produced 20 was during the Gatewayera by the Germanhardware manufbcturer phase 21 5 (now defunct). Moreover,the British company 22 EyetechGroup Ltd. had,in the secondhalf of 2001,contracted with the Germancompany Escena z) GmbH to developand producenew powerpC equippedadd- on hardwarefor the Amiga n0a/4000, 24 subsequentlyreferred to as "the Amigaone A1200 and the AmigaOne44000" 25 respectively.AmigaOS 4.0 wasalso intended to run on this powerpC

26 hardwarewhich in effect could not be marketedwithout Amiga OS 4.0 as earlierversions of Lew OrrlcES oF DECLARATION OF EVERT CARTON - 5 WrllnruA. KrNsnr,,rLLC MARKET PLACE TOWER 2025 First Avenue, Suite.140 SEATTLE,WASHINGTON 98I2I (206)706_8 148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 6 of 24

I the Amiga OS includingAmiga OS 3.1,3.5 and 3.9 werecompiled for the incompatible68K

2 Motorola seriesof processorsand could not run unmodifiedon the AmigaOnehardware.

a J 20. SinceAmiga wasnot willing andable to investin developmentof Amiga OS 4 4.0 in the form of an upfrontpayment (in contrastwith AmigaOS3.5 and3.9), no agreement 5 was found betweenHaage & Partnerand Amiga for the developmentof Amiga OS 4.0. 6 21. Subsequently,in Septemberand October of 2001,the managingdirector of 7 EyetechGroup Ltd., Mr. Alan Redhouse,brokered a tripartitedeal betweenAmiga, Hyperion 8 and . Under that contract.Hyperion would act as the lead contractorfor the 9 developmentof AmigaOS4.0, Haage & Partnerwould work 10 asa subcontractor,Eyetech would

11 producethe requiredAmigaOne hardware, and Amiga would not be requiredto cover any

12 developmentcost but would be entitledto a per unit royalty payablefrom Eyetechfor each

13 AmigaOnesold by Eyetech.A true andaccurate copy of that contract.signed in November

14 2001,is attachedhereto as Exhibit 2. Pleasenote that unlike the copy of the contractprovided l5 by Amiga Delaware,Exhibit 2 is a completecopy of thatNovember 2001agreement, as it 16 includesthe Annex that lists all of the subcontractors.As the Court will see.both Hans-Joers t7 Friedenand ThomasFrieden appear on that Annex IL 18 22. Under the November2001 contract.and in return for absorbinsall the 19 developmentcosts for Amiga OS 4.0, Hyperion is entitledto retainall royaltiesstemming from 20 the saleof Amiga OS 4.0. Amiga indicatedthat it might at a laterdate be interestedto resume 21 developmentof AmigaOSthrough the releaseof subsequentversions of AmigaOS4 and 22 thereforeincluded a clausewhich allowed it to "buy in" all intellectualproperty z) developed

24 within the fran'reworkof the agreement(to the extentit was owned by Hyperion) and subjectto

25 the paymentof a symbolicthreshold amount. In article 2.01 of the AgreementAmiga granted 26 Lew OnplcESoF DECLARATION OF EVERT - CARTON 6 WrlLtalaA. KrNser, PLLc MARKET PLACE TOWER 2025First Avenue, Suite,140 SEATTLE,WASHINGTON 98I 2 I (206)706-8148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 7 of 24

1 the AmigaOnepartners (defined in art. 1.01as "Eyetech and Hyperion collectively") the

2 following licenses:

J 1. "a right andlicense to useand modify the Software"

4 2."an exclusiverisht andlicense to marketand distribute OS 4

5 - as a standaloneversion for the TargetHardware

6 - and as an OEM versionshipped with the AmigaOne"

7 3. "a right and licenseto usethe Amiga trademarksin coniunctionwith the AmigaOne". 8 Article 1.01defines the TargetHardware as"the PPC basedhardware developed and marketetl 9 platform l0 for the Amiga including but not lirnited to the hardwaredeveloped and marketedby

ll , DCE snd the Amigaone hardwaredeveloped b"v Escena under contractv,ith rhe

I2 Amigaone Partners." Article 2.01 thereforegrants Hyperion a licensefor an)' hardwarebased

11 IJ on PowerPCCPU's anddeveloped and marketed for the Amiga platform.

14 23. Contraryto what Amiga claims,Hyperion hasnot distributedAmigaOS 4 for l5 any hardwarer,r'hich does not conform to this definition settingforth the approvedscope of l6 Hyperion'slicense. Moreover. Hyperion has to dateonly marketedAmiga OS 4 for the t7 AmigaOnehardware. Furthermore,the "strategicpartnership" Hyperion announcedon25 l8 March.2007 with the Italiancompany ACube SystemsSrl hasnot beenperformed upon yet t9 and relatesonly to hardwareexplicitly mentionedin the definition of the TargetHardware in 20 article1 .01. i.e. Phase 5 andDCE hardwareand the AmigaOnehardware. Under the agreement 2l with Hyperion,ACube Systemswill act as manufacturerand worldwide distributorof the 22

aa Amiga OS 4 softwarepackages. ZJ

24 24. In article2.02 of theNovember 2001 agreement, Hyperion undertook to "use

25 bestefforts to ensurethat Amiga OS 4.0 is readyfor releasebefore March I, 2002". 26 Lew OrrrcES oF - DECLARATION OF EVERT CARTON 7 Wrrrrelr A. KrNser-,PLLC MARKET PLACE TOWER 2025First Avenue. Suile.140 SEATTLE.WASHINGTON 98I 2I (206)706-81.18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 8 of 24

I (Exhibit 2.) Hyperioncan demonstratethat it hasused best efforts to completeAmiga OS 4.0

2 in a timely mannertaking into accountall relevantfactual circumstances.

a J 25. In accordancewith article 3.02,Amiga was to "provide Hyperion with all 4 necessarySource Code and documentationto allow Hyperion to carry out its contraclual 5 obligationsunder this Agreement". This provision hasto be read in light of article 2.01 which 6 grantsHyperion "a right and licen,ceto useand modifi.,the Software". In article 7.07"the

Sofhuare"is defined as"the SourceCode of Amiga OS 3.I and the upgradesof Amiga OS 3.I 8 'Boing includingbut not limitedto OS 3.5 and 3.9 and associated Bags"'. In article4.06 9 ('Pov,er to grant rights') "Amiga representsand warrants that: t0 ll (a) it has the right, power and authority to grant the rights ttnd licenses granted in this Agreementand.fully perform its obligotionshereunder; t2 (b) the makingand performunce of thi.sAgreement by Hyperion doe.;not l3 and shall not violate an)' seporqleagreement, right or obligution exi^sling befweenAmiga and any third party: and l4 (c) thereare no oul.slandingliens, sec'uriD,interests or olher l5 encumbrancesof any kindv'har.Eoeverin or lo the Softv,areor lo any of' the intellectualproperty rights therein." t6 Contraryto what Amiga claims,in orderfbr Hyperionto developOS 4.0,Amiga $'asto

11 tl provideHyperion not only with the source-codeof Amiga OS 3.1 but alsoof AnrigaOS 3.5 l8 andAmiga OS 3.9. l9 26. Further,*OS 1.0" is definedin articlel.0l of the agreementas"the version of 20 the ClassicAmigaOSt developed by Hyperionpursuant to this Agreementwith the.functionality 2l describedin Annex I hereof'. Annex I explicitly statesunder the headingof "Design Goals o.f 22

/) os 4": 24

' 25 The term "ClassicAmiga OS" was usedto differentiatethe Amiga OS from the products developedby Amiga on the basisof the totally unrelatedsoftware developed Tao Group Ltd. 26 i.e. "AmigaDE" and"AmigaAnywhere". Lew OnnrcESoF - DECLARATION OF EVERT CARTON 8 Wrr-r-rell A. KrNssr,, PLLC MARKET PLACE TOWER 2025 Firsl Avenue. Snite440 SEATTLE.WASHINGTON 98I 2 I (206)706-8118 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 9 of 24

I "The following summarizesthe desireddesign goals of OS 4.0: z Essentially,OS 3.9 runningon the AmigaOneand Cyberstorm PPC withoutusing the 68K CPU,using a 68K Emulator(...). a J As muchPPC-native as necessary as soon as possible' (...)". 4 In order for Hyperion to carry out the contractuallyagreed upon softwaredevelopment it 5 requiredfull accessto the Amiga OS 3.5 and3.9 source-code,in orderto makethe necessary 6 additionsand enhancements,and to recompilethe source-codeto the PowerPCCPU native 7 format. which is incompatiblewith the native format of the 68K CPU. 8 Hyperion attemptedto obtain accessfrom 9 27. In the courseof November2001

10 Amiga of the AmigaOS3.5 and3.9 source-code.It wasrevealed that Arnigadid not in fact

1l haveaccess to this source-code.Moreover, it was revealedthat therewas a disputebetween t2 flaage & Partnerand Amiga aboutthe intellectualproperty rights of Amiga OS 3.5, 3.9 and the l3 subsequentlyreleased "Boing Bags"(i.e. service packs). I4 28. We learnedfrom third party developerswith whom Haage& Partnerhad 15 subcontractedfor the developmentof Amiga OS 3.5 and3.9 that saiddevelopers had only 16 grantedvery limited rights to Haage& Partneron the basisof standardcontracts drafted by the 17 legal departmentof Gatewayfor the developmentof Amiga OS 3.5 which were subsequently 18 recycledfor the developmentof Amiga OS 3.9. A true andaccurate copy of an exampleof one l9 of thosecontracts is attachedhereto as Exhibit 3. Under article4 of theseagreements ("Grants 20 (refenedto as"supplier")"grants to H&P an exclusive,perpetual 2l of License")each developer

22 right within the Territory to: z) 4.1.1.Copy andreproduce or havecopied or reproduced,license and distributethe Product. 24 4.2 No other use of Supplier Sqfnt,are,H&P Sofru'are,, 25 Third-Parry'Soft:wareor the Derivative Worksis granted hereby"' 26 LAw OFFICESOF DECLARATION OF EVERT CARTON - 9 Wrlneu A. KINssL, PLLC MARKET PLACE TOWER 2025 First Avenue.Suile 4'10 SEATTLE.WASHINGTON 98I 2I (206)706-8 I 48 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 10 of 24

1 29. In article 9.1 of theseagreements under the headingof "ownership" Haage&

2 partner"acknowledges and agreesthat all right, title and interestin and to the Supplier

a & J Soffv,are,in whole or in part, in anyfornt (...) sh1tl belongto Supplierand that Haage 4 partner's sole rights theretoshall be only thoserights grantedby Supplierpursuant to this 5 Agreement.(...)". In otherwords Haage & Partnerand by extensionAmiga only had a limited 6 right and licenseto reproduceand no source-codelicense to useand modify. In accordance

with article I I of said agreements,each party moreoverhad the right to terminatethe license 8 after2 years. 9 30. As lead-contractorof Amiga for the developmentof Amiga OS 3.5 and3.9, l0 & partnerhad concludedsimilar masteragreements with Amiga, grantingAmiga only a ll Haage Haage& Partnerwas unwilling to provideAmiga l2 limitedreproduction license. As a result, the fact that 13 (andby extensionHyperion) with the source-codeof Amiga OS 3.5 and3.9 despite

14 Amiga hadrepresented to Hyperionthat it had full accessand rights to the Amiga OS 3.5 and

l5 3.9 source-code.

l6 31. In order for Hyperion to carry out its contractuallyagreed upon development t7 work, it had to negotiateand enterinto dozensof individual agreementswith a significant 18 numberof individualAmiga OS 3.5 ad 3.9 subcontractors(developers) in orderto gainaccess 19 to their source-code.Despite using best efforts,Hyperion was not able to concludeagreements 20 with all OS 3.5 and3.9 developers.Most notably,as a resultof the ongoingdispute between 2l Amiga andHaage & Partnerrelating inter alia to the Amiga OS 3.5 and 3.9 intellectual 22 property.no agreementbetween Hyperion and Haage& Partnerwas reached' This led to z)aa additionalcosts and loss of time relatedto the 24 totally unforeseenand very substantial not ableto secure' 25 duplicationof the OS 3.5 and3.9 functionalitywhich Hyperionwas 26 LAW OFFICES OF DECLARATION OF EVERT CARTON - IO Wnrrur A. KlNseL, PLLc MARKET PLACE TOWER 2025 First Avenue. Suite'140 SEATTLE. WASHINGTON 98I 2 I (206)706-8148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 11 of 24

1 32. As a directconsequence of the disputewith Amiga, Haage& Partnermoreover

2 opted not to play any part in the developmentof Amiga OS 4.0. This led to further delaysas

3 Haage& Partner(explicitly listed as a subcontractorin Annex II of the 2001Agreement) was + originally going to carry out key developmentwork as describedin Annex I. Hyperion had to 5 retasksome of its key subcontractorsto take over the work originally plannedfor Haage& 6 Partner.

33. When Hyperionasked Amiga to provideit with the Amiga OS 3.1 source-code, 8 Amiga directedthis questionto Mr. Olaf Barthel,a key Amiga OS 3.5 and 3.9 developerwho 9 hadalso carried out work for 'ssubsidiary Amiga TechnologiesGmbH. At the request 10 l1 of Amiga's currentCTO, Mr. Bany Jon Moss, Mr. Barthelhad spentvery substantialtime t2 reworkingthe Amiga OS 3.1 source-codeto reducethe dependencyon the 68K seriesof

13 MotorolaCPU's (i.e.converting assembly files to C source-code)and generallyimproving l4 source-codequality and uniformity. SinceAmiga had repeatedlypromised Mr. Barthel l5 compensationfor this work, Mr. Barthelwas not willing to hand over the reworkedsource-code t6 and Hyperion had to enterinto an agreementwith Mr. Barthel to secureaccess to the Amiga 17 OS 3.1 source-codedating back to 1994.The alternativewould havebeen another duplication l8 of efforts vt'ithmore ensuingcosts and delaysAttached hereto as Exhibit 4 is a true and l9 accuratecopy of the contractbetween Hyperion and Mr. Olaf Barthel mistakenlydated October 20 insteadof Decemberof 2001.Attached hereto as Exhibit 19 is a true andaccurate copy of the 21 e-mailof 25 Novemberof 2001by Mr. Bany Moss,CTO of Amiga, acknowledgingthat 22 compensationfor the aforementionedwork was promisedto Mr. Barthelby Amiga. The z-)

24 alternativewould have beenanother duplication of efforts with more ensuingcosts and delays.

25 34. In March of 2002 Eyetechinformed Hyperion it had terminatedthe agreement

26 with EscenaGmbH for the developmentof the AmigaOne 120014000as Escenafailed to Law OrnrcESoF - DECLARATION OF EVERT CARTON I I Wrllrau A. KrNseI-,PLLC MARKET PLACE TOWER 2025 First Avenue. Suite440 SEATTLE,WASHINGTON 98I 2 I (206)706-8118 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 12 of 24

I deliver. Eyetechsubsequently did find an altemativesolution in the form of the PPCbased

2 motherboardsdeveloped by (the now defunct)Fremont, CA basedMai Logic Inc. In a press-

a J releaseof 9 July of 2002 Mai Logic and Eyetechofficially announcedthe agreement.A true 4 andaccurate copy of thatannouncement is attachedhereto as Exhibit 5. This announcement 5 was subsequentlyofficially endorsedby Amiga on their websiteas the new AmigaOne. A true 6 and accuratecopy of that announcementis attachedhereto as Exhibit 6. - 35. Contraryto the designof Escena.u,hich was intendedto operateas an add-onto 8 the originalAmiga 1200or Amiga 4000motherboards with full accessto the Amiga's custom 9 proprietarychipsets as developedby Commodore,the Mai Logic designwas a standalone 10

ll motherboardwith a PowerPCCPU and off the shelf componentswhich were usedin various

12 mainstreamPCs but withoutthe proprietary Amiga chipsets.

13 36. As Amiga stateson its own website:"The "Amiga OperatingSystem" originally

t4 targetedthe desktopcomputing market. It was built aroundtightly integratedhardware and

15 sofiware." SeeExhibit 7. which is a trueand accurate copy of the relevantportion of Amiga's

16 website. t7 37. As a resultof the cancellationof the Escenadeveloped AmigaOne I 200/4000in 18 favorof the stand-aloneMai Logic AmigaOnewithout the Amiga proprietarycustom chipsets, 19 Hyperion had to tackle the very substantialtask of "decoupling" the Amiga operatingsystem 20 from the Amiga customchipsets. As a resultof the tight integrationbetween the Amiga 2l hardwareand software,this requiredvery extensivechanges throughout the AmigaOS source- 22

^a codein additionto a whole new setof devicedrivers (e.g. IDE, USB) for the off the shelf ZJ

24 componentspresent on the Mai Logic AmigaOne,work which was originally plannedby 25 Amiga for a hypotheticalAmiga OS 4.2. 26 Lew On'nrcESoF - DECLARATION OF EVERT CARTON 12 Wrrrrav A. KrNser-,PLLC MARKET PLACE TOWER 2025 First Avenue. Suite440 SEATTLE.WASHINGTON 98I 2I {206)706-81.18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 13 of 24

I 38' In spiteof this Hyperionreleased the first versionof Amiga OS 4.0 to the

2 AmigaOne ownersin May of 2004. A true and accuratecopy of a notice of that releaseis 3 attachedhereto as Exhibit 8. The first versionof Amiga OS 4.0 includedall functionalitv 4 which was listedin Annex I of the 2001Agreement as "essential." On October10. 2004 a first 5 updateof Amiga OS 4.0 wasreleased to the AmigaOneowners which includedfunctionality 6 listed in Annex I as "important'"or "optional" or even scheduledfor a hypotheticalAmiga OS 4'2. A true andaccurate copy of the noticeof that releaseis attachedhereto as Exhibit 9. The 8 highly acclaimedindependent tech website"Ars Technica" 9 reviewedthe first updateof Amiga OS 4'0 on 17 .Ianuary l0 2005 and concluded:"l hat,eusetl PDA.g that ha,yesimilar CpLl and RAM capacities 11 as my AmigaOneand they do not provide the samespeed andJunctionality that is already t2 at'ailable in OS4. OS4feet,slike afutt desktop,yet hos the resource requirementso/ a handheld." 13 A true and accuratecopy of that review is attachedhereto as Exhibit 10. Most if

l4 not all of the featureslisted in Annex I are mentionedthroughout this review,some more 15 explicitly than others.On December27 2004,another update of Amiga OS 4.0 wasreleased

l6 which containedall featuresdescribed in Annex I as"essential" or "important"and which 17 included manyoptional features, some not evenlisted in Annex I of the 2001Aereement. A 18 true and accuratecopy of that releaseis attachedhereto as Exhibit I 1. r9 39. It shouldalso be notedthat at no point prior to November2006 did Amiga 20 Washingtonor its purportedlegal successor KMOS. subsequentlyrenamed 2l to Amiga Inc (Delaware) (KMOS did publicly 22 announcethey had renamedthemselves to "Amiga Inc,'. We aa had unfortunatelyno way z.) to know what the exactnature of the transformationwas.), and currentplaintifl 24 ever raisethe issuethat Hyperion had not usedbest efforts to completeAmiga

25 OS 4.0 to the contractualspecifications. Quite the contrary.on26 May 2004KMOS/Amiga

entered 26 into a separateagreement with Hyperion to producea demonstrationversion of Amisa Lew OprrcESoF DECLARATION OF EVERT CARTON - I3 Wrr-ueuA. KrNsel, pLLc MARKET PLACE TOWER 2025 Firsr Avenue.Suite 440 SEATTLE, WASHINGTON 98I 2I (206)706-8148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 14 of 24

I OS 4.0 for the PDA referencedesign from IBM, the Arctic ("Agreementfor the provision of

2 softwaredevelopment services.") A true and accuratecopy of that agreementis attachedhereto

a J asExhibit 12.Please note that the unsignedcontract submitted by Amiga Delawareas 4 Exhibit G relating to the sameArctic developmentwork is materially different and is 5 unknown to us. Withoutthe decouplingof the Amiga OS from the proprietaryAmiga custom 6 chipsets-which was neverpart of the original contractualspecifications for Amiga OS 4.0-

this would not havebeen possible in a reasonabletimeframe. 8 40. Amiga Delawaremaintains that Hyperion is in breachof contractby refusingto 9 turn overall source-codeand intellectualproperty title for Amiga OS 4.0. Amiga Delaware 10

1l basesthis claim on article3.01 of the 2001Agreement which providesthe following: l2 Amiga may, at any time but no laterthan six (6) monthsafter the completionof OS 4.0,elect to pay HyperionTwenty Five Thousand IJ USD (25,000USD) in orderto acquirethe ObjectCode. and intellectualproperty of OS 4.0 pursuantto and within the limits set 14 out in article2.06 hereof. Said payment will be first be appliedagainst the balanceof any outstandinginvoices by the AmigaOne Partnersvis d l5 vis Amiga. In the eventAmiga doesnot electto carry out the aforementionedpayment, all ownershipand title in the enhancementsof t6 and additionsto the Softwareeffected by Hyperion and its subcontractorspursuant to this Agreement,shall rest with Hyperion. t7 Thereis no other contractualor legal mechanismwhich Amiga can invoke to lay claim to the 18 Amiga OS 4.0 source-codein the absenceof a directcontractual link betweenAmiga and t9 Hyperion's subcontractors,most of whom are locatedin the EuropeanUnion. 20 41. From the wordingof this article3.01 three important conclusions can be drawn: 2l

22 at ZJ

24 25 26 LAw OFFTcESoF - DECLARATION OF EVERT CARTON 14 Wrrrrelt A. KrNseL,PLLC MARKET PLACE TOWER 2025 First Avenue. Suile ,140 SEATTLE. WASHINGTON 98 I 2 I (206) 706-8| 18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 15 of 24

1 (1) Oncecompleted (i.e. once all contractuallyagreed upon tasks consrderedessential or importantin Annex I were completed),Amiga 2 only had 6 monthsremaining to exercisethe "buy in" clause.

a J (2) Any paymentswould first be appliedagainst any outstanding invoicesAmiga had with the Amiga One Partners. 4 (3) In the eventAmiga did not electto exercisethe buy-in optionwithin 5 the contractuallyallotted timeframe, all ownershipand title in the enhancementsof and additionsto the Softwareeffected by Hyperion and 6 its subcontractorspursuant to this Agreement,shall rest with Hyperion to the extentthat it was transfenedto Hyperion by the subcontractorsin the 7 first place.

8 Amiga Delaware'sclaim thatthe buy-in optionwas exercisedin 2003is withoutmerit because

9 Amiga Delawarefails to produceproof of paymentof the full amountof 25.000USD andcan

10 insteadonly demonstrateeffective payment of 22,250USD andnot evenby Amiga itself. (See 11 ExhibitJ to the Declarationof William McEwen In Supportof PlaintiffAmiga, Inc.'s Motion t2 for PreliminaryInjunction and Motion for ExpeditedDiscovery.) l3 42. Whilst Hyperion'sinvoice mentioned USD 22500.the actualamount received t4 was USD 22250USD as canbe ascertainedfrom the plaintiff s Exhibit J. Hyperiondoes not 15 denyhaving received USD 2250from TachyonCorporation on April 8th.2003 (with no 16 accompanyingmessage). and USD 20000on May 6th2003 from Itec LLC ("RE: AMIGA t7

18 OPERATING SYSTEM"). Acting in good faith, both paymentswere combinedin the invoice t9 that mistakenlymentions22500 USD and that was issuedto Itec LLC, the party the November

20 3rd 2001Agreement was purportedlytransferred to, anddated December 31,2003, fiscal

2l yearend.Said invoice, a trueand accurate copy of which is attachedhereto as Exhibit 13,was

'Payment 22 registeredas pursuantto article3.01 of the November3.01 agreement between

ZJ Amiga. Eyetechand Hyperion') . 24 43. The Exhibit J filed by Plaintiffdoes confirm the declarationby William 25 McEwen that two paymentswere issued,in April and May 2003. The paymentsMister 26 I-ew Orn'rcESoF - DECLARATION OF EVERT CARTON I5 Wrllreu A. KrNseL,PLLC MARKET PLACE TOWEIi, 2025 First Avenue. Suite-140 SEATTLE.WASHINGTON 98I2I (206)706-8r,18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 16 of 24

I McEwen refersto do howevertotal only 22250 USD, insteadof the purportedUSD 25000. We

2 havenever contested nor disputedthe actuallypaid out amounts. Indeed,as statedabove, we

J haveofficially acknowledgedsaid payments with the aforementionedinvoice to ltec LLC. 4 Hyperion hasnot found any paymentby the companythat was at the time known as Amiga. 5 44. Moreover,in2003 Amiga still hadone outstanding invoice with Hyperionto the 6 amountof USD 5000dated 3l May 2001and relating to 3D work carriedout by Hyperionfor 7 the AmigaDE software. A true and accuratecopy of that invoice is attachedhereto as Exhibit 8 14. The existenceof the invoicewas subsequentlyacknowledged by Amiga's CTO Bany Jon 9 Mossaka "Fleecy" by e-. A trueand accurate copy of thate-mail is attachedhereto as 10 ll Exhibit 15. Any paymentsby Amiga hadto be appliedfirst to this accountreceivable (with t2 accruedinterest) as per art.3.01 of the Agreement.

13 45. Itec LLC committedto honouringthese financial obligations by Amiga t4 Washingtonin the TransferAgreement, by the clausein the agreementstating: l5 "flyperion confirmsthat for the receiptof 25000 US. Hyperion shall transferthe ownershipof the ObiectCode, Source Code and intellectual property of OS 4.0 to Itec l6 in accordancewith the provisionsof the November1, 2001agreement between Amiga, Hyperion and Eyetechand to the extentit can do so underexisting agreements with 11 tt third partydevelopers whose work shallbe integratedin OS 4.0"

18 This statementimplies a commitmentto Article 3.01in theNovember 3'd, 2001 Agreement, l9 explicitlymentioning "Said payment shall first be appliedagainst the balanceof any 20 outstandinginvoices by the AmigaOnepartners vis d vis Amiga". 21 46. In conclusionit canbe statedwith absolutecertainty that the buy-in clausewas 22 not activatedin 2003 becauseinsufficient funds were transferredto Hyperion to satisfythe ^a ZJ contractualconditions. The subsequentpayments in November2006 for outstandinginvoices 24 of Amiga werein fact madeoutside the time-periodallotted for the buy-in clauseto be 25 activatedseeing as Amiga OS 4.0 was completed released 26 and to the contractualspecifications Lew OnrrcEsoF - DECLARATION OF EVERT CARTON I6 Wrrrmu A. KrNseI-,PLLC NI-ARKETPLACE TOWER 2025 First Avenue. Suite4-10 SI]ATTLE, WASHINGTON 98 I 2 I (206) 706-8I .18 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 17 of 24

in I Decemberof 2004and following that date. Amiga only had 6 monthsto make full payment 2 which it failedto do.

J 47' In octoberand November of 2006 Hyperionalso insisted on paymentof the 4 legal feesHyperion had had to pay in 2005 on behalf of Amiga Delawarefollowing Amiga 5 Delaware'sformer cEo Mr' Garry Hareretaining Hyperion's Bergianlaw 6 firm to write a lesal opinion on the legal standingof variousAmigaos derivatives 7 underEU and Belgian intellectualproperty law. The initial agreement 8 betweenHyperion and Amiga was that Hyperion would foot half of the legal feesfor this 9 work and that Amiga would pay the other half' Unsurprisingly,Amiga neverpaid theirhalf 10 which amountedto a retainerof 5.000euros (6767USD at the currentexchange lt rate)of a total retainerof 10000euros. 48' I2 Hyperionagreed on 24 April 2003to assign the 2001 agreementto ltec. LLc, a l3 Stateof New York, u's'A', limited liability companywith its administrativeseat at l'2prince 14 Street'NY' NY 10012,u's'A' A trueand accurate copy of thatagreement is attachedhereto as l5 Exhibit l6' Itec LLC was a companycontrolled pentti by Mr. Kouri who wasalso the main 16 shareholder of Amiga washington' The idea behindthe transactionwas purportedlyto separate l7 the classicAmiga os productsand activities (suchas Amiga os 4.0) from thenew product- 18 line AmigaDE and AmigaAnywherebased on the entirelyincompatible 19 an6unrelated technologyfrom Tao Group. 20 49. The agreementbetweerr 2t Hyperion and Itec was onry one part of the documentationneeded to successfullyassign 22 Amiga washington,srights to Itec. section7.12

aa of the 3 November 200l ZJ agreementreads in part as follows:

24

25

26

DECLARATION Lew OF EVERT CARTON - I7 OrrrcES oF WnlmlrA. Krxser, pLLc MARKET PLACE TOWER 2025First Avenue. Srrite 440 SEATTLE.WASHINGTON 98I 2 ] (206)706-8 I 48 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 18 of 24

I Neitherparty shall assign or subcontractthe whole or any partof this Agreementwithout the otherparty's prior writtenconsent. 2 (Exhibit2.) As the first pageof Exhibit 2 explains.the November3. 2001contract was a J betweenAmiga Washingtonand the "Amiga One Partners."meaning "Eyetech and Hyperion 4 collectively." (Exhibit2. ArI.1.0l.) Thus,according to the contract,in orderto havean 5 effectiveassignment of Amiga Washington'srights to Itec.borh AmigaWashington and 6

7 Eyetechhad to give their prior writtenconsent. Eyetech has not doneso and.to my knowledge.

8 neitherhas Amiga Washington.

9 50. Anotherimportant condition of the 3 November2001contract is fbundin l0 paragraph2.07, Bankruptcy: ll In the eventAmiga filcs for bankruptcyor becomesinsolvent, the Amiga One Partnersare granted an exclusive.perpetual. world-wide and royalty l2 freeright and licenseto develop(at their soleexpense). use. rnodify and marketthe Softwareand OS 4 underthe "An-rigaOS" trademark' l3 (Exhibit 2.) It wasonly aftersigning the 24 April 2003contract with ltec that Hyperionfound t4 Washingtonwas in a stateof virtualbankruptcy and insolventand that 15 out that in realityAmiga t6 this assignmentwas part of a largerscheme to extractassets out of Amiga Washingtonto t7 relocatethem into KMOS Inc. (leavingonly debtsin the WashingtonState entity) which

18 subsequentlyrenamed itself as Amiga Delaware"the currentplaintiff. In this processKMOS t9 Inc. acquiredItec LLC. It appears.then, that the Amiga One Partners(Hyperion and Eyetech)

20 alreadyowned an exclusive,perpetual right to the Sofiwareand OS 4 underthe "Amiga OS" 21 trademarkon24 April 2003.and that Amiga hadnothing to assignto Itec. zz 5l. If, on the otherhand. Ihe 24 April 2003agreement was a valid transfer,it still

ZJ containsa restatementof art.3.01 of the 2001Aereement: 24 25 26 Le.w On'rrcES oF - DECLARATION OF EVERT CARTON I8 Wrllrelt A. KrNsnl, PLLC MARKET PLACE TOWER 2025 Firsl Avenue. Silile 440 SEATTLE.WASHNGTON 98I 2I {206i 706-8148 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 19 of 24

I Hyperionconfirms that for the receiptof 25,000.00USD, Hyperionshall transferthe ownershipof the Object Code,Source Code andintellectual 2 propertyof OS 4.0 to Itec in accordancewith the provisionsof the Novemberl. 200.1agreement between a Amiga, Hyperionand Eyetech J and to the extentit can do so.under existingigreements with third party developerswhose work shallbe integratealnbS +.0. 4 As pointedout above,the paymentof 25.000USD was subsequentlynever carried out in full 5 which is why many monthslater Hyperion on 3 I December 6 2003raised an invoiceof 22.500 USD to Itec in orderto justify the paymentsin its accounts.(see Exhibit 13.)

8 52' The November2001 Agreement therefore makes it abundantlyclear that

Hyperion can 9 only transferSource-Code and the intellectualproperty contained therein subiect to the rights granted 10 to Hyperion by Hyperion's subcontractors.Hyperion is precludedby 1l copyright law and by contractfrom transfeningmore rights that it has secureditself.

t2 Furthermore, even if "ownership" had beentransferred to Amiga, Hyperion would still have 13 retained a licenseto usethat intellectualproperty under Art.2.el of the November2001 t4 agreement(Exhibit 2.) Any otherarrangement would havebeen unreasonable because Amiga 15 Washington was obligatedto pay none of the upfront developn-rentcosts. By conrrasr, t6 Hyperionhas invested approximatelyEURO 830000,which amountsto US $1.12g.000as of t7 the 18 May 2007 official exchangerate. It simply is not reasonablefor Amiga 18 Delawareto claim that it couldextinguish all of Hyperion's l9 rightsand interest in this intellectualproperty for a mereUS 20 $25.000payment. 53' 2l Severaldevelopers have indeed elected to restrictthe rights grantedto Hyperion to various 22 degrees,some by grantingonly an objectcode license i.e. a licenseto copy,

reproduce z) and distributein binary form. A true and accurateexample of one of thosecontracts 24 is attached heretoas Exhibit 17. The Agreementof 24 April 2003contains a similar,explicit 25 acknowledgementof the rightsof third partydevelopers. (Exhibit 16.) 26

Law OnrrcESoF DECLARATION OF EVERT CARTON - I9 Wrr-lralr A. KrNser-,ILLC MARKET PLACE TOWER 2025 First Avenue. Suite4,10 SEATTLE,WASHINCTON 98I 2 I (206)706-8t48 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 20 of 24

I 54. Evenif onewere to admit(which is not the case),that article3.01 of the 3

2 November2001 contract was executed fully in a timely manner.Hyperion can neverbe

a J requiredto turn over more rights than it has itself, but that is exactlywhat Amiga is seekingto 4 accomplish. 5 55. Moreover,if Amiga Delaware'spurported termination of the 3 November2001 6 agreementwas consideredeffective, and even if onewere to admitthat art. 3.01was fully 7 executedin a timely manner,Amiga Delawarehas removedthe contractualfoundation for the 8 transferof the intellectualproperty rights which Hyperion obtainedcontractually from third 9 parties. Saidthird partieswould needto decideto keepthe contractsbetween Hyperion and 10 in place.instead of exercisingtheir right to terminatethese agreements. It should 11 themselves party are l2 be notedin this respectthat all contractsbetween Hyperion and its third contractors

IJ subjectto Belgianlaw andprovide for Belgiancourts as an exclusivevenue. t4 56. Amiga Delawarealso claims that Hyperion committeda materialbreach of the i5 2001Agreement by failing to securethe widestpossible rights to the intellectualproperty t6 developedwithin the frameworkof the 2001Agreement. Article 2.06of the 2001Agreement

1'7 indeedstates the following: l8 (...)Atany time prior to the completionof OS 4.0,and no laterthan six 19 (6) monthsthereafter and providedAmiga makesthe paymentpursuant to article3.01 hereof, Hyperion shall transfer all Source-Code.interest 20 and title in OS 4.0 to Amiga to the extentit can do so underthe agreementsconcluded with third party contractors.Hyperion shall use party 2l bestefforts to securethe widest possiblerights from third contractors.Amiga herebyacknowledges and acceptsthat sornethird 22 partiesmay only grantan Object Code licenseor may otherwiserestrict the rights grantedto Hyperion. z)^a (Exhibit2. emphasisadded.) In view of the fact that Amiga Washingtondid not investany 24 funds in the Amiga OS 4.0 developmentand insteadand from the outsetdefaulted on its 25 primarycontractual obligation. i.e. the provisionof the Amiga OS 3.1,3.5 and3.9 source-code 26 Lew OprIcESoF DECLARATION OF EVERT CARTON - 20 WrLlrarrrA. Krxser, PLLC MARKF:TPLACE TOWER 2025 First Avenue. Suite.l.l0 SEATTLE. WASHINGTON 98 I 2 I (206)706-8 I 48 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 21 of 24

I which causedsubstantial extra costs for Hyperion,Hyperion did indeeduse best efforts to

2 securethe widestpossible rights. In mostcases wherein no source-codeaccess could be

a J obtainedthis was due to the fact that the financial requirementsof the subcontractorfor full 4 transferof ownershipor a source-codelicense could not bejustified by Hyperionwithin the 5 limited funding availablefor the project. 6 57. Amiga hadno reasonableexpectation that for an amountof 25,000USD it could - obtainmore rights than it hadpreviously obtained pursuant to the 1998and 1999agreements 8 with Haage& Partnerfor the developmentof Amiga OS 3.5 andAmiga OS 3.9.especially 9 becauseHyperion did communicatethe identity and the numberof the subcontractorsin Annex 10 lt II of the 2001agreement which includedHaage & Partner. t2 58. Underthese agreements between Amiga andHaage & Partner("Grants of

IJ License")Haage & Partnermerely grantsto Amiga an exclusive,perpetual right within the l4 Territory to: l5 copy andreproduce or havecopied or reproduced,license and distribute the Product. l6 No other useof SupplierSoftware, H&P Software,Amiga Software, t7 Third-PartySoftware or the Derivative Works is grantedhereby."

18 (ExhibitsI and3) Moreoversaid exclusive "object code only" licensesto reproduceand copy t9 were subjectto terminationby eitherparty after an initial temr of two year. 20 59. SinceHyperion had to enterinto dozensof agreementswith third party 2l contributorsto Amiga OS 3.5 and3.9 to obtaintheir source-code.Hyperion actually secured 22 'Joint ownership"with full source-codeaccess of thesesections of Amiga OS 3.5 andAmiga ZJ OS 3.9. A true and accurateexample of one of thoseagreements is attachedhereto as Exhibit 24 18. In essence,Hyperion has more extensive rights on Amiga OS 3.5 and3.9 thanAmiga 25 26 Lew OrE'rcESoF - DECLARATION OF EVERT CARTON 21 Wrr.lralr A. KrNsnr, PLLC MARKET PI-ACE TOWER 2025Firsl Avenue. Suite,l40 SEATTLE,WASHINGTON 98I 2 I (206)706-8 l.l8 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 22 of 24

I washington owned when it signedthe 3 November2001 contract. Amiga Delawaretherefore 2 hasno claim to thoserights underthat agreement.

J 60' Hyperionmoreover hasfull accessto the reworkedAmiga OS 3.1 source-code 4 througha contractwith Mr. olaf Barthel.something which Amiga was neverable to secureas 5 it failed to compensateMr. Barthel fbr his efforts. A true and accuratecopy of Hyperion,s 6 contractwith Mr' Barthel(mistakenly dated october of 2001instead of Decemberof 2001)is attachedhereto as Exhibit 4. 8 6l ' Quitea numberof contractswith 9 developersactually provide for full transferof ownershipto Hyperion.exclusive or non-exclusive 10 perpetualsource-code licenses. A true and accurateexample of oneof those 1t agreementsis attachedhereto as Exhibit 17.

12 62' Amiga alsoclaims Hyperion failedto discloseto Amiga thatthe ExecSGkernel, l3 which wasdeveloped by Hans-JoergFrieden and Thomas Frieclen as Hyperion,s t4 subcontractors,would not be ownedby Amiga if it exercisedArt. 3.01of the 2001Agreement. l5 63' In response.it should first of all be notedthat both Hans-Joergand Thomas l6 Friedenare explicitly listed as independent subcontractorsin Annex II of the 2001Agreement. l7 (Exhibit 2' last page') The fact that they were not employeesof Hyperion was alwaysclear to 18 Amiga washingtonwho had contractedwith Hyperion in 2001 for the development 19 of 3D technology for their AmigaDE software("Ami3D',). In 20 the agreementof 26 May 2004 ("Agreementfor the provision of software 21 developmentservices,,) this fact is oncemore explicitlyacknowledged in article 22 2.01of this agreementwherein it is statedthat ,Hyperion

shall procurethe servicesof Hans-Joergand Thomas z) Friedenas independentsub-contractors to 24 carryout the Work.,, (Exhibit 12.)

25 64' Moreover,Hyperion did securea broadobject-code license to theExecSG 26 kernelwith a contractualoption to acquirefull ownershipat a laterdate. (Exhibit 1s.) In view

DECLARATION I-aw On'nrcES OF EVERT CARTON - 22 oF Wrllnu A. KrNsnr, pLLc MARKET PLACE TOWER 2025 First A!.enue.Suire 4,10 SEATTLE,WASHINGTON 98I2] (206)706_8 I 48 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 23 of 24

I of the fact thatthe originalExec kemel-which is usedin Amiga OS 3.1,Amiga OS 3.5 and

2 Amiga OS 3.9-is entirelywritten in assembly(machine code of the Motorola68000 series of

1 J CPU which precludesrecompilation on a different machine)rendering it entirely uselesswithin

.+A the frameworkof an operatingsystem intended to operateon the incompatiblePowerPC 5 CPU's. Amiga is from a purely practicaland technicalstandpoint now not worseoff with an 6 object-codelicense of a PowerPCkemel which is written in C and no longertied to the Amiga

proprietarycustom chipsets. PowerPC is a RISC microprocessorarchitecture created by the 8 1991Apple-lBM-Motorola alliance,known asAIM. Originallyintended for personal 9 computers,PowerPC CPUs have sincebecome popular embedded and high-performance l0 processors l1 as well. PowerPCwas the cornerstoneof AIM's PRePand Common Hardware

12 ReferencePlatform initiatives inthe 1990s,butthe architecturefoundthe most success inthe

l3 personalcomputer market in Apple'sMacintosh lines from 1994to 2006(before Apple's

14 transitionto Intel).

t5 65. In additionto all of the otherproblems with Amiga Delaware'sarguments, Art. 16 2.08 providesthat "in the eventAmiga decidesto halt developmentof the ClassicAmiga OSfor l7 the TargetHardware, the Amiga One Partnersare granted an exclusive,perpetual, worldv'ide l8 right and licen.seto develop,use, modify and marketlhe Sofrwareand OS 1 under the "Amiga t9 OS" trademqrkand at their sole expense.( ) Amiga shall be deemedto havehalted 20 developmento/'the ClassicAmiga OS in the eventthat no substantiallynev,version oJ-the 2l Clas,sicAmiga OSfor the Target llardware is releasedv,ithin 6 (six) months after the 22

/.la completionof OS 4.0 by Hyperion." (Exhibit 2.) ZJ

z+ 66. Hyperiondid in fact completeand release Amiga OS 4.0 to the contractual

25 specifications(as described in Annex I of the 2001Agreement) in Decemberof 2004. Amiga,

26 however,did not developa substantiallynew versionof the ClassicAmiga OS for the Target Lnw On'nIcESoF - DECLARATIONOF EVERTCARTON 23 Wrllterrr A. KrNser-, PLLC MARKET PLACE TOWER 2025 First Avenue.Suite 440 SEATTLE.WASHINGTON 98I 2 I (206)706-8 | 48 Case 2:07-cv-00631-RSM Document 26 Filed 05/21/2007 Page 24 of 24

I HardwareAmiga within six monthsof that date. Amiga thereforeis deemedto havehalted

2 developmentof the ClassicAmigaOS. As a result,since no laterthan July of 2005the

3 AmigaOnePartners have "an exclusive,perpelual, worldwide right and licenseto tlevelop,use, 4 modify and markel the Softwareand OS 4 under the "Amiga OS" trademarkand at their sole 5 expense." 6 67. For all of the abovereasons, Amiga Delawarecould not terminatethe 2001 7 Aqreementin Decemberof 2006. 8 I DECLAREUNDER PENALTY OF PERJURYUNDER THE LAWS 9 OF THE STATEOF WASHINGTONAND BELGIUM THAT THE FOREGOINGIS TRUE AND CORRECT. l0

11

l2 Date i Evert Carton t3 l\,, 14 Place

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l6

t7

18

l9

20

21

22

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26 Lew On'nrcESoF - DECLARATION OF EVERT CARTON 24 Wnrnu A. KrNsel, PLLC MARKET PLACE TOWER 2025 First Avenue. Suite440 SEATTLE.WASHINGTON 98I 2I (206)706-8r18