@billt

Quote:

billt wrote: @Tigger Quote: Uhh, noone but Hyperion has ever said that AI(W) was insolvent I haven't seen any blatant admission of that either, but they have said things that flirted with this. Maybe not enough to be a legal declaration or anything... In one of the Q&A sessions with McEwen he described how Amiga Washington sold all assets to itec, and then because they then owned nothing that Amiga Washington closed its doors. Before that he spoke of their famous $100 bank account. And of course the fact that they couldn't pay their rent, got kicked out of their offices and the landlord sold all their stuff. That's all things for people with nothing better to do to argue over, but are related to insolvency and weren't said by Hyperion. I haven't kept track of course, Hyperion may be the only ones to really make much use of the word "insolvent" in particular, but talk on that general theme has been around and from lots of people for some time.

They have to insolvent before they sell to Itec and after they sign the Nov 3, 2001 contract. If they are insolvent before the Nov 3, 2001 contract no court in the land will hold up 2.07, if they are insolvent after April 23, 2003 (ie after the sale to Itec) it doesnt matter either. It actuality a court is very very very likely to throw out 2.07 anyways as a sweetheart deal to reorganize creditors, which is illegal in the US.
-Tig

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@Colin_Camper

Quote:

Err.. The guy KMOS accused of embezzling them and the guy KMOS took to court.

Got a copy of the verdict handy?

#6

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@Manu

Quote:

Manu wrote: @number6 Because I disagree that Amiga is a "culture not a business", and because there was talk about "OS4 is almost completed" already in 2003 ! So what happened to 2004, 2005, 2006, and 2007. Tell me I doesn't make you feel sick " Did Apple bother? "- Yes in a way they did and look at OS X today.

It looks like Hyperion is not strong in the truth telling department. I guess a lot like AInc. No matter how bad AInc looks, Hyperion signed the contract with their eyes open and now want to welch. Sad, I know I would never trust them again.

My hope would be AInc wins the case and sells out to DiscreetFX.

@Tigger

Quote:

Thank you for pointing out you were incorrect, I appreciate it. -Tig

Thanks for inspiring me.
each time you get it wrong makes me smile.

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@Colin_Camper

Quote:

The guy KMOS accused of embezzling them and the guy KMOS took to court.

With said court telling KMOS to bugger off....

Of course, the whole case was hilarious --- "Oh, well, the contract which says 'only comes into effect after KMOS secures funding' really *means* 'only comes into effect after Garry secures funding for KMOS'. And the fact that after we secured funding, we acted for months as if the contract had come into effect, paying Garry lots of money, does not mean we ever believed that we should have paid the money. And when we threatened to end his employment, that didn't mean that there was any employment to end, even if we paid him for the employment that there wasn't. "

I'd love to know what ever came out of the compulsory mediation back in California(IIRC), though. Alas, I believe those documents are not public.

@umisef

Quote:

@Colin_Camper Quote:The guy KMOS accused of embezzling them and the guy KMOS took to court. With said court telling KMOS to bugger off....

I suppose we should add:
Quote:

*** May 18, 2006: The New York Judge dismisses Amiga's complaint, arguing that ""The language of the Agreement could not be more clear that it was [Amiga's] responsibility, not [Hare's] responsibility, to secure the $1,000,000.""

And like tigger says about people who annoy judges..."could not be more clear" is akin to the judge saying "why the hell are you ignorant people at Amiga wasting this court's time?!!".

#6

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@umisef

Quote:

umisef wrote: Which is actually an interesting point --- are Hyperion also claiming that they were unaware of the party packs when they entered the 2001 contract? The party packs which predate that contract by quite some time....

Well according to the legal docs in that case, this happened in 2001 2002, and according to bill mc, they went insolvent and had less then $100 dollars in the bank by 2003 ( http://www.umilator.net/courtdocs/shocket1a.pdf
Nuff said..

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Couldn't care less what other people think, seeing that there's concrete evidence they don't.

@billt

Well firstly you'd have to get the users together, then start discussing what to do, and how many want the cash back, and ask amino if they would like to pay it back or buy them a copy of os4, os4 classic costs 105 usd ... but then again, the dollar was worth more back then.

_________________
C= Amiga addict
,,,
(Oo)
⎛☮ໄ
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Couldn't care less what other people think, seeing that there's concrete evidence they don't.

@Colin_Camper

Quote:

Colin_Camper wrote: @number6 Quote: And which guy got relieved of his position? Err.. The guy KMOS accused of embezzling them and the guy KMOS took to court.

Colin,

KMOS didnt accuse Garry of embezzling at all, if thats what you got from the court documents, you didnt understand them.
-Tig

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@Spectre660

I'm sorry, but there is no warranty implied in the 2001 contract that is broken and the new lawsuit isnt about a warranty especially with regard to 3.9. Next time before you comment about legal documents, why dont you actually read them. And you still havent explained why you think starting a second suit in Washington over the exact same contract with the exact same arguement isnt a really bad idea that is going to upset a judge or 2.
-Tig

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@mike

Quote:

according to bill mc, they went insolvent and had less then $100 dollars in the bank by 2003

My brother has less than $10,000 in the bank, with a mortgage of $100,000+. He is not insolvent, however, because he has non-monetary assets to match and exceed his liabilities.

Same for AI. Oh, and of course whether AI(W) was or was not insolvent in August 2003 is not very relevant if the contractual rights and obligations were transferred to Itec in April 2003.

Quote:

http://www.umilator.net/courtdocs/shocket1a.pdf Nuff said..

*grin* Guess who runs that "website" :)

@umisef

Quote:

Same for AI. Oh, and of course whether AI(W) was or was not insolvent in August 2003 is not very relevant if the contractual rights and obligations were transferred to Itec in April 2003.

Hi umisef, just wondering why you do think it is not very relevant? Isn't it Hyperion's claim that Amiga (Washington) was insolvent "no later than the end of July 2002 up through and including April 23, 2003", and thus the transfer to Itec is null and void ? Isn't that one of the pillars of their argument and their execution of clause 2.07?

Last edited by HammerD on 06-Nov-2007 at 04:14 AM.

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@umisef

Those old VW Beetles are cool, aircooled even. I always wanted one then ended up getting a 1999 New Beetle. It still runs great and I need to customize it. I heard you can convert New Beetle's to 100% electric now. Or if you really want to go all out do this!

http://www.techeblog.com/index.php/tech-gadget/street-legal-jet-powered-vw-beetle

Last edited by DiscreetFX on 06-Nov-2007 at 04:32 AM.

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@Tigger

I think Spectre wants to refer to the second paragraph of the definition : AInc gave warranties about OS3.9 ownership and source code transfert that never happened.
At least this is what I think Spectre wants to point, and not consumer warranty which, you are right, is irrevelant here.

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@Tigger

Quote:

Again COBRA, you keep not explaining what in the (2001) contract makes you think doing this a violation.

see clause 2.1 of the 2001 contract, which clearly states that the AmigaOne partners get exclusive right to market and distribute. AInc according to the contract have no right to offer OS4 to customers and to take money for it. The fact that they have already done that before the contract was signed simply means they have already breached the contract when it was signed, since they had the money for sales of OS4 and those who paid were expecting to receive the OS when it was first released. But as I said, arguing about the Party Pack is a waste of time anyway, because the "I am Amiga club" vouchers were obviously sold after the contract was signed, so they are in breach of the contract in any case.

Quote:

The general arguments you make in this case dont apply due to the lateness of the software, non-completion of what at the time of the contract was the largest platform for the OS

The clauses of the contract apply as long as the contract is valid (e.g. not cancelled), and one party breaching the contract is not stopped by another party also breaching it. Besides, even if the lateness of completion can be blamed on Hyperion (which would be difficult considering that they did not provide Hyperion the required source code in the first place), there have been no complaints from Amino regarding the completion date of OS4, so what are you talking about?

Quote:

and of course the hardware issue, all of which are squarely to blame on Hyperion.

Umm, last time I checked the 2001 contract, Hyperion did not have any responsibilities with regards to hardware.

Quote:

There is nothing new in this case.

Not much new except that the plaintiff is a third company, not Itec and not Amiga Delaware, but Amino (which used to be Amiga Washington), which was thought to be defunct. The fact that they're active means they are liable for any debts and entering a lawsuit means all their dirty laundry will come to the surface. Also, because there's no valid transfer of the contract to either Itec or AInc(D), the contract is with Amino (previously Amiga Washington), who is as it turns out still an active company doing business. Amino have certainly not executed any buyin, and have not paid any money to Hyperion, and it has been well over 6 months past the completion of OS4, regardless of which date you pick. Therefore even if the insolvency clause would not be granted by the judge, Hyperion still get the rights to OS4.

Last edited by COBRA on 06-Nov-2007 at 09:03 AM.

@Tigger

Quote:

Uhh, noone but Hyperion has ever said that AI(W) was insolvent and noone ever said that is why Itec got the contract.

Funny statement considering that Bill McEwen admitted that himself in a sworn declaration at a court of law

Quote:

And I'm sorry but the Itec contract with Hyperion does not say that Itec must be the owner of the 2001 contract for it to be implemented. Its a really simple basically one line contract, they give money, Hyperion gives source code and object modules, they gave the money, they have every right to sue for the code and object modules.

Considering that the 2003 contract specifically states that it is in accordance with the 2001 contract, I don't understand why you think repeating that nonesense is going to make it correct. Besides, the 2003 contract was never executed since Itec never transferred the required amount of money (they were $250 short IIRC) and therefore they never received any rights in the first place, so it's a non-issue.

Last edited by COBRA on 06-Nov-2007 at 08:56 AM.

@umisef
Quote:

The silly "Club Amiga" things are a different issue, and Hyperion might possibly have a valid complaint that Amiga was taking prepayments on sales that at the time would have been Hyperion's to make, and that thus Amiga was in effect dipping into Hyperion's coffers. Of course, complaining about that 5 years later is not very convincing, either, but at least there is something to complain about.

This is one (but not the only) thing I still don't get... many people argue "well, Hyperion is a bit late complaining about (i.e.) the insolvency", why isn't AInc late too regarding, for example, the issue of the OS4 missed deadline?

By the way... I assume in the US legal system there *is* a time limit defined by law, after which you can't complain anymore about breach of contract. Isn't there?!

@umisef

Quote:

If, as you (and the various Amigas) say the party packs were Amiga's to deal with, then where is the damage to Hyperion?

Simple. Hyperion were supposed to make money from sales of OS4. Amiga Inc. have effectively sold copies of OS4 before its development even started and made a considerable amount of money on it. This means fewer sales for OS4, because you can't expect those people who paid the Party Pack to buy OS4 again, and surely many of them did not do so out of frustration. This act from Amiga Inc. is also damaging to Hyperion, because it creates a bad public image for the OS, which again results in loss of sales.

Quote:

Of course, complaining about that 5 years later is not very convincing, either, but at least there is something to complain about.

They have been complaining to Amiga Inc. for many years now and I'm quite sure there are records of that, should they be required by the judge. The fact that they did not sue previously is because they were hoping for the issue to be resolved internally. It's not like for years Hyperion was happy with how AInc were dealing with them and their customers and all the sudden that changed, is it.

Last edited by COBRA on 06-Nov-2007 at 08:46 AM.

@umisef

Insolvency is the inability to pay outgoings as they come due.

http://en.wikipedia.org/wiki/Insolvency

Your brother is solvent because he is paying his bills on time.

He also has an interest in the house probably equal or greater than his debt.

It's a good example though.

Another related term is liquidity ie. Lots of assets but no cash = lack of liquidity.

It also illustrates well why an excess of debts over liabilities is not always a cause for bankruptcy eg. if you can demonstrate the ability to pay back the debt the borrower won't initiate bankruptcy proceedings. .. so cash flow over-rides your poor asset position.



Quote:

umisef wrote: @mike [quote]according to bill mc, they went insolvent and had less then $100 dollars in the bank by 2003

My brother has less than $10,000 in the bank, with a mortgage of $100,000+. He is not insolvent, however, because he has non-monetary assets to match and exceed his liabilities.

@HammerD

Quote:

Quote: whether AI(W) was or was not insolvent in August 2003 is not very relevant if the contractual rights and obligations were transferred to Itec in April 2003. Hi umisef, just wondering why you do think it is not very relevant? I

Huh? It's about as relevant as whether Bill Clinton thought the US should attack Afghanistan in September 2001.... AI(W) was no longer relevant to the contract, so whether they are broke or not doesn't matter.

Quote:

Isn't it Hyperion's claim that Amiga (Washington) was insolvent "no later than the end of July 2002 up through and including April 23, 2003", and thus the transfer to Itec is null and void ?

Yes, that is their *claim*.

However, for that claim, it *REALLY* doesn't matter whether McBill said in August 2003 that there was a hundred bucks left in the account or not.

Even *if* McBill had actually confirmed a scenario which constitutes insolvency (and stating a positive bank balance is not the usual way to cofirm insolvency), then that would see AI(W) insolvent 13 months after Hyperion wants to see them insolvent, and 4 months after they *need* to see them insolvent in order for their claim to have any hope of succeeding.

Thus, the whole "$100 in the bank account" is irrelevant. Hyperion would be well advised to look for other arguments if they want to convince a judge that AI(W) was insolvent 13 months before that statement.