Replacement paper for Azo

Alex Hawley said:

Excellent points PE. No expectations raised or dashed.

If I was a billionaire, or even a high-end millionaire, I would underwrite this paper develoment in its entirety. That's the level of help they need. Too bad people with that much money throw it at politicians rather than the arts. Let's don't follow that thought any further.

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Alex, I have the capability to do what they want, but not the finances. I truly wish I could help more.

If I had the finances, I could build the plant, make the emulsion and coat it. I know just the people to hire too, all former EK people who live around me. I could probably even find a spare coating machine or two somewhere here in Rochester.

PE

Jorge said:

You want to throw your money away, fine! but dont tell me I need to do the same or I am a "negative" person.

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Huh? You did see where MAS said that no checks would be deposited until the paper is actually ready to be sold ("final payment to get the paper"), and then he re-stated that in his second post, right? This last statement of yours reeks of negativity. Why are you saying that one would be "throwing money away?"

James M. Bleifus said:

Donald, Michael has made it even easier for you. He's said in another post that anyone who wants to take over can have this whole enterprise for FREE. Send him an email. You can have the whole thing for yourself and worry about the money, finger pointing, etc.

Cheers, James

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No, James...if I were to do that it would be the same thing as simply switching positions...nothing would change...

I propose as an alternative that a corporation be formed with actual real ownership of the venture and it's assets by the participants and not by any single individual.

Donald Miller said:

I propose as an alternative that a corporation be formed with actual real ownership of the venture and it's assets by the participants and not by any single individual.

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By taking over the venture you can ensure this, no? Could you get it done and all the money together by the three week deadline? The point I'm trying to make is this. I see several people being critical in this thread and trying to make things more difficult on M&P but I don't see people stepping up to the plate. What attempts have other people, besides John at J&C (who I believe was involved in facilitating this), made to get a new silver chloride paper developed once Azo disappeared? What facilities did they fly to and inspect? I'll wager none. Michael and Paula have done the heavy lifting while others have sat by. Without them this new opportunity wouldn't exist. Perhaps most surprising to me is that many of the detractors in this thread are very light Azo users, if they use it at all.

So if you're interested in forming a corporation I encourage you to assume responsibility for the whole project and mold it as you wish. It's unfair to try and insert yourself or someone else into the money stream without being willing to shoulder the project. But remember, the clock is ticking. The longer it takes for Azo to reappear the more chance there is of its former users finding other papers that they can live with.

Cheers, James

I haven't read all the thread yet, but I found too much critical.
I'm going to put my order for a new paper, and I probably will give my adesion if there are other people interested to do a corporation.

Best

Stefano

James M. Bleifus said:

By taking over the venture you can ensure this, no? Could you get it done and all the money together by the three week deadline? The point I'm trying to make is this. I see several people being critical in this thread and trying to make things more difficult on M&P but I don't see people stepping up to the plate. What attempts have other people, besides John at J&C (who I believe was involved in facilitating this), made to get a new silver chloride paper developed once Azo disappeared? What facilities did they fly to and inspect? I'll wager none. Michael and Paula have done the heavy lifting while others have sat by. Without them this new opportunity wouldn't exist. Perhaps most surprising to me is that many of the detractors in this thread are very light Azo users, if they use it at all.

So if you're interested in forming a corporation I encourage you to assume responsibility for the whole project and mold it as you wish. It's unfair to try and insert yourself or someone else into the money stream without being willing to shoulder the project. But remember, the clock is ticking. The longer it takes for Azo to reappear the more chance there is of its former users finding other papers that they can live with.

Cheers, James

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James,

You seem to be making some massive leaps in logic by what you have written.

Let's look at some things that appear to be factual for a change. The first is that Michael and Paula have taken it upon themselves to bring this paper to market albeit with some pretty unique and atypical financing. Some would even go so far as to characterize the financing as it has been proposed as pretty creative.

When one begins to exam this from a fiscal viewpoint, the matter seems to be something that doesn't make a lot of sense...not good fiscal sense at any rate. I have been involved in business start ups before. The financing for this Azo replacement is probably the screwiest damned idea that I have ever heard.

While you may think that the heavy lifting has already been done, I disagree with you. The heavy lifting is going to be done by the people that are being asked to pony up $5,000 to $10,000 each.

Let's recognize one thing. That is that Michael and Paula have voluntarily decided to seek an Azo replacement. Their decision was theirs to make. The responsibilty to finance this idea is their responsibility as well.

Now there is nothing wrong with this proposed financing so long as everyone is on the same page and that it conforms to applicable legal codes. I simply indicated what appears to me to be very apparent...things that normal investors would shy away from and what normal, sane, and reasonable people would want in return for their money.

Proposals of this type that request the financial outlay from investors that this proposal seems to entail would normally require a published prospectus under law. Furthermore the individual investor transactions would be governed by state and federal laws. I am not convinced that those details have been addressed or attended to. No mention has been made addressing those requirements from what I have observed.

I have found photographic papers that satisfy my desires for self expression. Even though I bought a lot of Azo at one time, I no longer use the paper for several personal reasons. That leaves me at the point of saying "what is the point?" By that I mean "the point" of involving myself and my abilities to put this together in an equitable manner. Equitable being used in this context as being both legal and fair to all parties to the transaction.

Having said this, I am going to divorce myself from this situation. I have expressed the things that reasonable people should consider insofar as an investment. My responsibility to those individuals is finished. I wish all who choose to be involved the very best in this matter.

i wish i had thousands of dollars to help out with this paper-venture, but unfortunately i don't.

i hope enough $$ is raised through "prior paper sales" or "portfolio sales" &C to bring this contact paper into the hands of photographers.


-john

Donald Miller said:

Now there is nothing wrong with this proposed financing so long as everyone is on the same page and that it conforms to applicable legal codes. I simply indicated what appears to me to be very apparent...things that normal investors would shy away from and what normal, sane, and reasonable people would want in return for their money.

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They aren't investors Donald, they're customers, and have no expectation of ROI. That's the key point. If you look back through the posts M&P never solicited investors, it was you who raised that issue and the legal and financial concerns you raise are only relevant to investors. No one has been asked to invest in this thread (although I wouldn't be surprised if M&P contacted some people and asked them to invest in this venture), people have been asked to place orders for paper in advance. It is you who has raised the investor angle. When I buy something in advance from Amazon do I worry about ROI, or prospectuses, etc.? Of course not.

You've indicated that you've been involved in start-ups before and pre-sales may be unusual in your neck of the woods, but I'm close enough to Silicon Valley to say that it's not uncommon at all here. I work for a well known computer company that started in a garage several decades ago and we see products all the time from other start-ups in garages. Funding from advance sales off prototypes is common. Presuming that you're entitled to a portion of the company because you've placed an order with them isn't.

Cheers, James

Some of this may be repetitive. Apologies in advance.

Thanks, Photo-Engineer for your good wishes.

James said it for me. No one is being asked to invest.

Quote from Don Miller (in quotes) with my comments interspersed.

"This means that there will be two master rolls of paper that will be prepared for future sales and distribution by Michael Smith, his heirs, and/or his assignees. The effect for those who contribute is that in essence they are paying for this product more then once...or so it would appear."

Huh? People will be paying for their paper once.

"It is important to recognize one important factor for those who consider that finished product is exchanged for financial investment"

No one is being asked to invest. No one will be at any risk whatsoever. Just me and Paula. We take all of the risks until a final finished product is available.

"Tha is that the value of the finished product is a value that is assigned by Michael and that it has very little or nothing to do with cost of manufacturing said product."

Really? How do you know what the paper costs to make? Actually, we are selling the paper for less than cost--if our time is assigned any value.

"A more equitable investor position, considering that the requested investment is for start up purposes, would be to exchange the financial investment for finished goods at cost and not at retail value."

No investors are being asked for. Advance sales are. Paula and myself are the only investors. Sell paper at cost? If this were a real business, and I were trying to make money from this, as opposed to providing a service to the LF community (in addition to getting paper for myself and for Paula), I would put a value on my time. If I did that, the retail cost if the paper would be significantly higher than it is now.

"There is another way in which this matter could be resolved and this is a way more typically used for business start up funding. This is the manner that is most usually used because investors require it before investing and because it is more equitable to all parties concerned."

Again, besides myself and Paula there are no investors. How anyone could have construed anything I wrote to indicate that anyone was being asked to make an investment is beyond me. Willful distortion?

"The alternative way is to form a cooperative venture. A corporation, in other words. In that arrangement, the investors would own an ownership position in the company...in this case that would be the finished product. This ownership position would be represented either as financial value or product market share. In other words, the investors would own actual hard assets as opposed to the arrangement that is being proposed wherein the hard assets remain the property of Michael Smith, his heirs, and/or his assignees."

If I did this, the legal expenses would be (to me) staggering and it would virtually guarantee that the paper would never get reproduced. And why should a portion of anyone's money go to legal fees when all of it can go to getting paper? I'll bet there is not one person out there who would prefer things that way. Just incorporating costs $ and time. Lots of time. And I would have to put a value on my time. My guess for the total cost inlcuding time would be somewhere in the five figures.

Many thanks to those who have spoken out on my behalf. I also mean to say "in my defense." But why I should have to defend anything is beyond me. I am trying to provide a service to the LF community as well as secure a lifetime source of paper for myself and for Paula. Oh, I know, some are just raising questions, not being negative at all. Bull****. Yes, there are legitimate questions to be raised. But it is the passive-aggressive tone of those questions that lead many besides myself to call the questioner(s) on it.

After a discussion like this I am sorely tempted to take the position that those who purchase paper in advance and those who genuinely express their good wishes will be assured of a continued supply forever. Paula and I will have our lifetime supply (paid for by the sale of the Azo Portfolio and Paula's and my photographs--not by others' advance purchases.) The entire run of the paper will be fully paid for. As for the others--hey why should I care? I don't need this abuse. Life is too short and I have too many other things to do. I have not taken this postition. But it is tempting to do so.

Michael and Paula,

No good deed goes unpunished.

Those with anything approaching a clue have no doubt about your role in not only the LF community, but in the contemporary practice of photography. May the winds of good fortune be at your back, and may your lives and images be illuminated with the best of light.

As far as those who couldn't find a clue with both hands if it was clue rutting season and they were smeared with clue musk, why waste your time interacting with them? I'm sure the "clueful 99.9%" would prefer you spend the time exposing another image, bringing the paper closer to reality or doing anything other than giving more attention to our little splinter group of the Flat Earth Society.


Godspeed in this new endeavor, guys.

-KwM-

Michael,

I had no interest in distorting anything. Nor do I think that I did...at least based upon what you have previously stated. I saw then and see now that what you are asking for is the financial involvement of others into an endeavor that you chose. That, by it's very definition, involves an investment by others in your endeavor. So yes, you are asking for an investment from others. Your words, the terms that you use in your descriptions would all be viewed as an "investment" in the endeavor by the legal community.

For your future information, you have made at least one and probably more statements that meet the threshold of "investor" as opposed to "prior release purchaser". You may want to avail yourself of an attorney to keep from having future problems should you decide to try something like this again.

Considering that, I would be one hell of a lot more comfortable defending my position then I would yours in a court of law.

Good luck in your endeavor.

I deleted my post because this thread has gotten too silly. (Added later: in fairness to Donald his post below is a portion of the post that I deleted before he made his post. He must have been writing his as I was deleting mine).

James

James M. Bleifus said:

Do you have some case law to provide, Donald? Please post it in proper citation so that I can read it in Westlaw.

Cheers, James

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James,

Why don't you go research it yourself...beyond that go suck on a rock. My suggestion to Michael is tendered in the hope that in the future that he would adhere to advice from an attorney before he goes off half cocked.

I stay by what I said earlier. I have no intention of suing anyone...

Donald Miller said:

My suggestion to Michael is tendered in the hope that in the future that he would adhere to advice from an attorney before he goes off half cocked.

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You have a law degree, and passed the bar exam?

KwM,

Perfectly said. With that, I'll let your post be the last one I read on this thread.

Good Luck M & P

Michael & Paula,
Your efforts will not go unrewarded.
I hope that I will be able to use the new product in the future.
I unfortunately will not be in a position to buy any photographic product until June, the start of my fiscal year.
The good side is that I will have at least 100 8x10 negatives to sort through to make final prints by then.

Good Luck

Dan Hill

PS, poor attitude by some members has made this thread ignorable,
so the button is pushed

Donald Miller said:

James,

Why don't you go research it yourself...beyond that go suck on a rock. My suggestion to Michael is tendered in the hope that in the future that he would adhere to advice from an attorney before he goes off half cocked.

I stay by what I said earlier. I have no intention of suing anyone...

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Donald, I'm not inferring that you're looking to sue anyone. I am claiming that you are trying to act as a spoiler while portraying yourself as a facilitator. I've studied some law both as a military policeman and as a law student before deciding I couldn't live as a hired gun and anyone who knows anything about the law knows that the "legal community" is never of one opinion. It's like saying that the analog community is of one opinion. Hooey. Moreover, as a technical writer you should know the value of claim/support. You made the claim I asked you to provide the support. You can't. That tells me that although you are attempting to sound professorial and legal savy that you are reading a book about law rather than reading the law. Anyone who had researched would have cases on hand and they would be shepardized. Since you're unable to do that readers now know how much weight to give your opinion.

OTOH, were you trying to help Michael out you would have said something along the lines of "gee, I did something similar to that and here are some of the pitfalls I've found" or you might have clarified whether Michael was looking for investors or purchasers. Instead you took it upon yourself to try and restructure the deal and declare those involved as investors.

Donald, I don't mind that we have a difference of opinion. I enjoy your posts elsewhere and will continue to enjoy them. What frustrates me is that you are hurting your fellow APUGers. You and I don't use Azo but we have friends on the list who are desperate for it. Why would you allow your vendetta against Michael to injure them?

Finally, about your suggestion that I "go suck on a rock." Anyone who has read my posts knows that I have a propensity for falling while photographing at the coast. I'm heading there today so you can take solace in knowing that I will be taking your advice whether I want to or not.

Cheers, James

James,

Since it appears that you want to discuss this from a legal precedent, the following while not directly speaking to the issue at hand, do speak to definitions and relations as they apply to investors as defined under law.

"Congress' purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called." Reves v. Ernst & Young, 494 U. S. 56, 61 (1990).

The test for whether a particular scheme is an investment contract was established in our decision in SEC v. W. J. Howey Co., 328 U. S. 293 (1946). We look to "whether the scheme involves an investment of money in a common enterprise.


no post-Howey decision is to the contrary, see United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 852-853. Dictum suggesting otherwise in Reves v. Ernst & Young, 494 U. S. 56, 68, n. 4, was incorrect. The SEC has consistently maintained that a promise of a fixed return does not preclude a scheme from being an investment contract. The Eleventh Circuit's alternative holding, that respondent's scheme falls outside the definition because purchasers had a contractual entitlement to a return, is incorrect and inconsistent with this Court's precedent. Pp. 3-8.

I could research this further for you. However, I think that this will give a general idea of how the court may well view this matter of the intended financing of an Azo replacement based upon the language that Michael Smith has heretofore used.

My intent is not to harm anyone who wishes to use Azo or it's replacement. It is however to define the conditions of what this matter actually seems to be.

To give you a little personal background on this matter, I have previously lost a sum of money in the six figures from a scheme that was founded on creative financing very reminiscent of what Michael Smith is trying to label his enterprise as being. Perhaps that leaves me a little saddle sore and a tad bit pissed off at those who would prey on others by mislabeling and misidentifying the conditions that exist.

Good luck on your photographic foray. I do hope that you don't kiss a rock by falling down.

Donald Miller said:

a tad bit pissed off at those who would prey on others by mislabeling and misidentifying the conditions that exist.

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Do you really, REALLY believe that this is what Michael is doing?

Donald, how is this different than pre-ordering TMY?

I think Michael Smiths comment in his last post says it all.

He is bearing the entire burden financially and from a labor aspect until a final usable salable product can be shipped, and no money will be taken from customers credit cards nor will checks be cashed until that time.

It therefore seems different to me than what Donald asserts in that the entire financial burden is on M&P and not the public. You might consider the payment and acceptance an exchange of prommisory notes rather than a form of investment. There will be no exhange of money until the product is available. That does not seem to me to be unreasonable. (except to M&Ps finances - but they are willing to do this for OUR sake)

I am all for what they are doing. I simply don't have the time, nor extra cash or I would be placing a large order myself! I am putting all of my resources into a similar type project - namely, those workshops of mine. I can speak from that standpoint and say that it is a huge financial drain and takes a lot of labor. I can sympathize with their trials and tribulations and again wish them all of the best.

I might add that it would be nice someday to see an exact scientific comparison of this new Azo paper with the old Azo paper for each and every photographic parameter so that we can all see where or even if they differ from each other.

PE

I think most people feel the same as PE.

I think M&P are doing a service for LF and ULF photog's and that if they succeed, there may be some hope for other small market photography products.

Donald Miller said:

James,


I could research this further for you. However, I think that this will give a general idea of how the court may well view this matter of the intended financing of an Azo replacement based upon the language that Michael Smith has heretofore used.

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Donald, first you have my sympathies for the money lost. Having said that, these cases aren't relevant because there is no promise of a return. Howey involved people purchasing orange groves, cultivating them and receiving a promised return. Purchasers were offered a contract for the land AND a service contract from one of their subsidiaries. Moreover, the court found that those investors were people who invested because they EXPECTED a return on investment. To quote from the case:

The transactions in this case clearly involve investment contracts as so defined. The respondent companies are offering something more than fee simple interests in land, something different from a farm or orchard coupled with management services. They are offering an opportunity to contribute money and to share in the profits of a large citrus fruit enterprise managed and partly owned by respondents. They are offering this opportunity to persons who reside in distant localities and who lack the equipment and experience requisite to the cultivation, harvesting and marketing of the citrus products. Such persons have no desire to occupy the land or to develop it themselves; they are attracted solely by the prospects of a return on their investment.

"Share in the profits" is critical here as is a failure to meet the definition of a security for sale as found in footnote 3 of the case. Michael has never offered anyone a share of the profits hence there is no ROI. And an expected ROI is critical in this case. It's the difference between going down to your local store and buying a book and going to a meeting and buying into an oil well. Different laws will apply. No one is buying Azo with the intent on making money from reselling the paper (at least not before printing their images on it). The Azo deal is merely a sale of goods, nothing more.

One disclaimer, because I am at home today I am unable to shepardize this case so I am relying on your observation that it has not been overturned.

Donald Miller said:

I could research this further for you. However, I think that this will give a general idea of how the court may well view this matter of the intended financing of an Azo replacement based upon the language that Michael Smith has heretofore used.

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Yes, it does give us a view. Without the representation of an ROI or demonstration of a security offered I'd bet on Michael any day of the week in this case. The language of investment has always been yours.

Donald, I've received some PMs from fellow APUGers (non-Azo users at that) who have been on this list longer than I and I now know more about your antipathy with Michael. This is my last post in this thread. I think that it's demonstrated that your understanding of the law is is not what it should be to make the representations you have and that your motivations are not as you claim. I wish you the best in your endeavors.

Cheers, James

Mushroom Season?

Donald-having a good mushroom season out there in Arizona?
Best, Peter

Donald Miller said:

I think that it is important for those who wish to become involved, as investors, to be aware of a couple of things...

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Emphasis added.

Donald, they are asking for pre orders of paper, how is that an investment, except for the specific amount of paper you are ordering, you are not investing in anything. There are those who really wish to see this succeed and will buy paper to support the venture, but they know that they are ordering paper.

Donald Miller said:

This is at departure from a manufacturer such as Kodak or Ilford where the actual manufacturer would retain title to the finished product.

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Until they sell it to someone. There are lots of industries in the world where contract manufacturing is the norm. Most of the items that we all end up getting from China are made to spec for a US company. I don't personally think it is much different than what Ilford used to do with Freestyle. The principal difference is that the item is not yet completed and fully tested. If folks are not comfortable with MAS being able to pull this off, then they should definately not preorder paper. It really is their choice.

Donald Miller said:

This means that there will be two master rolls of paper that will be prepared for future sales and distribution by Michael Smith, his heirs, and/or his assignees. The effect for those who contribute is that in essence they are paying for this product more then once...or so it would appear.

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Not at all. If you order $10,000 worth of paper, MAS will send you that much paper. It is paid for once and you have it. I do not expect to have some sort of future rights to paper or ownership stake in Freestyle because I buy a box of Arista paper, I expect them to send me a usable box of paper.

In addition, if you buy one of their prints or a set of prints, that is what you are buying. You are likely encouraged to buy it because you support what they are spending the money on, but you are buying a print.

I understand Jay and others thinking that there are too many variables here and not wanting to order. I also have no problems with Jay mentioning his concerns so that others can consider them before they order. I also understand others feeling that they have enough confidence in Michael and Paula and are willing to place orders for a product that does not yet exist, since they believe that Michael and Paula will test it appropriately. What I don't get is this implication in your post here that there is some sort of questionable dealing going on. It is quite simply a pre order situation for some paper. You will get your paper or MAS will refund your money.

Edit: Oh, and an FYI, I am not buying any paper, I do not contact print, I am not a huge fan of Michael and Paula, and I don't have enough money to consider one of their AZO editions. I have no dog in this fight, except that it is nice to think that there will be a replacement for AZO.