@fairlanefastback

Quote:

fairlanefastback wrote: Please link supporting information, otherwise we are back to your armchair lawyering unfortunately. You may be right but I think we need more than your word to be resonably sure.

What am I providing a link for? The $2.50 price? The sale to Prokom used that price for 800,000 shares.

Quote:

Amiga didn't have possession of the OS back then either, nor would I think many assets.

They had the OS until they sold it to Itec, they have to be insolvent before then, otherwise it doesnt matter, before that it really doesnt matter, but after that they dont have the contract.
-Tig

PS Last post for a week, I am on my way to Sunny Mexico early in the morning.

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: No - wrong! I claim the transfers cannot have been valid, as Eyetechs signature was missing each time. No "affirmative defense " involved this time - you claim the transfers are valid - so show me Eytechs signature, if you want me to take your point! Dandy your first point in wrong in all cases.

Why? Please enlighten me!

Quote:

Tigger wrote: You apparently believe that Eyetech should have signed the contracts we've seen.

Yessir!
But it's more knowing that they had to...


Quote:

Tigger wrote: Noone but you apparently believes that.

If you think that noone but me thinks this way, you must definitely live in a different reality as I and the others.

Quote:

Tigger wrote: What the 2001 contract says is that before AI(D)-Itec did there deal, Itec and Hyperion did there deal, AI-KMOS did there deal, or Hyperion and Acube did there deal all 3 original parties of the original contract were supposed to sign an agreement that said we agree to allow this. We've not seen any of those if any of them exist.

Fully agreed so far (aside from the fact that the contract neither knew AI(D), AI-KMOS, nor Acube - but I think this was not what you meant).

Quote:

Tigger wrote: But thats the problem with Hyperions defense, how can they be tricked by Itec in this scenario? Did they think they had signed such a document?

Tricked by ITEC?
I'd rather say they've been tricked by AInc(W) - at least that's what I understand from the court docs presented so far.

As I understand it, they (AInc(W)) claim to have transferred their assets to ITEC - and it remains to be seen, if this was legal at all.

If this wasn't legal then all actions resulting from this illegal action are illegal as well and as a consequence null and void.

Quote:

Tigger wrote: This is where laches is going to come in and bury them, and why they need to show that Eyetech objected to this deal to have any chance and I personally dont think it would work then. -Tig

If it should turn out that the AInc(W)-ITEC deal really was illegal, then there is no need for laches and affirmative defences and the like...

But all that remains to be seen - you know saying:

"At court and on sea you're in God's hand!"
(And I really hope that he will punish the scammers - whoever are the worse!)

Last edited by Dandy on 01-Sep-2007 at 11:03 AM.

_________________
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Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: I hope the judges at the US courts are not that blind or dumb that they do not think of the possibility of it being just the other way round - that they use their "friendship" to artificially balloon the value of their assets (with fraudulent intentions). So now you have accussed two publically traded companies (who bought KMOS stock) as being part of an attempt to defraud US Federal courts and the SEC by buying AI (KMOS) stock at an inflated price? Do you really believe that?

I haven't "accussed" anybody - all I said with that was that I would not be surprised if they did so - given what they did in the past - that's the way they are...

Quote:

Tigger wrote: Quote: As we know from the Bolton Peck case, they do not give a damn about debts or official court decisions - so what makes you think they would care when it comes to taxes? What we know is that McEwen doesnt care about stuff like that, with them filing SEC docs, etc for KMOS, I would disagree thats how the new company is being run. -Tig

Until not proven otherwise, I prefer to mistrust AInc (in which incarnation ever) & CO...

(Our former Bunderkanzler had a fitting word for venture capitalists like Pentti:
Grasshoppers...)

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

(Our former Bunderkanzler had a fitting word for venture capitalists like Pentti: Grasshoppers...)

[Andreas Wolf]

vice chancellor (and still current)

[/Andreas Wolf]

Last edited by Senex on 01-Sep-2007 at 07:41 AM.

_________________
amiga-news.de

@Tigger

Quote:

Tigger wrote: @Dandy Quote: ... In 2005, the Commodore name, no OS, no code, etc, sold for 22 million Euros. So yes I think buying Amiga, all its asset, copyrights, and the OS for $10M in stock was probably a sweetheart deal. ... Quote: Dandy wrote: Yes, but: 1) Commodore never e.g. frauded their customers with coupon actions 2) Commodore had real products to sell in numbers So in my eyes that alone makes a huge difference... You arent reading well.

???

Quote:

Tigger wrote: I might agree with #1, but honestly most people dont know AI did that, and half the people that they did it too think it was OK.

Well, I'm part of the other half then.

Quote:

Tigger wrote: as for #2 which part of they bought the Commodore Name (nothing else) for $22M Euros did you not understand. Thats the point ...

Yes, of course.
But I meant that they actually had something to sell in numbers (e.g. MP3-Players), after they entered business and AInc(W) up to today has nothing worth mentioning...

They had/have a working business plan - in contrary to AInc!
That's what I wanted to say...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @AmigaHeretic Quote: AmigaHeretic wrote: Umm... I've said many times I believe the 2003 contract will be ruled invalid because Eyetech didn't sign it. Hyperion can't sell something that doesn't belong just to them. i.e. They can't sell someone else property. i.e. They can't sell someone elses car. How many times have we gone over this?? Ok, there are two of you.

Nah - there are even more - just carefully read this and the related threads...

Quote:

Tigger wrote: Nothing in the 2001 contract, says all 3 parties have to sign every contract any of the other companies are involved.

Nothing in the 2001 contract says the signature of just one of the "AmigaOne Partners" is sufficiant when it comes to signing contracts...

Quote:

Tigger wrote: It says they need to give written approval. ...

Yes - and where is it?

Quote:

Tigger wrote: In US Law, that is a TOTALLY DIFFERENT DOCUMENT, not the contract in question. As for the car thing, we had the discussion before. My wife and I own a car, my wife sells the car to someone, the guy who bought the car is not in trouble with the law for buying the car, and the transfer is perfectly binding unless I, the party who didnt sign the contract comes forward to complain about it. My wife cant come forward and and say my husband did approve it, so the sale is no good. I can come forward and do that, and if I do it the day I find out about it, etc, then I very well might get the car back, but if I do it in 4 years after that guy has sold it to another guy and they've built a company about using my car, the judge is not likely to get me my car back, that the whole laches thing we have talked about, and you guys keep ignoring.

This comparison is inapplicable.
You and your wife are married - Hyperion and Eyetech are not.

Quote:

Tigger wrote: Unless Eyetech shows up and complains, Hyperion has no case here ...

Unless AInc(W) shows up with Eyetechs prior written consent, the transfer from AInc(W) to ITEC was illegal.

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

Dandy wrote: Yes, of course. But I meant that they actually had something to sell in numbers (e.g. MP3-Players), after they entered business and AInc(W) up to today has nothing worth mentioning...

Who says KMOS didnt have a business plan, the issue is that despite signing a contract with Itec, Hyperion has not delivered the product that they sold to Itec. KMOS's business plan involves that product, they've paid millions to acquire a bunch of assets and now Hyperion is not delivering there part and costing them money (at least thats what they are likely to convince the judge) which is why the New York court is going to throw the book at them.
-Tig

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@Dandy

Quote:

Dandy wrote: @Tigger This comparison is inapplicable. You and your wife are married - Hyperion and Eyetech are not.

First of all, my story is identically correct if I said two business partners, two brothers, etc.
They are co-owners of 1/2 of a bad contract, because the contract says that AI only has to get permission from "the other party" which in English is VERY VERY singular, and they have a single signature. In addition, there is no penalty phase in any of the contract, thats why its so bad, AI doesnt get permission, what is Eyetech's recourse? They can get out of the contract, gee thats not going to help Hyperion, they can sue AI for damages and maybe win, but they have to show damages (and there are none) and they have to show up to court (and they arent going to do that).

Quote:

Unless AInc(W) shows up with Eyetechs prior written consent, the transfer from AInc(W) to ITEC was illegal.

No, it might be a violation of the contract (though I doubt it is), but its not a violation of law. Secondly of the two companies in the lawsuit in New York, (Itec and Hyperion), the only one who has broken a law is Hyperion, they have either sold the OS to Itec illegally (Dandy's take on the situation) or have sold the OS legally and not delivered in a timely manner (my take on the situation). Either way the company in violation of US law is Hyperion not Itec.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: @Tigger This comparison is inapplicable. You and your wife are married - Hyperion and Eyetech are not. ... two business partners, two brothers, etc. ... because the contract says that AI only has to get permission from "the other party" which in English is VERY VERY singular,

Well - the "other party" has been defined in the contract as the "AmigaOne Partners" - is that still "VERY VERY singular" in English?

Furthermore those "Partners" are named:
Hyperion and Eyetech.

Still sounds "VERY VERY singular", eh, doesn`t it?


Quote:

Tigger wrote: ...and they have a single signature.

Can you please point me to where this is defined in the contract?

Quote:

Tigger wrote: They are co-owners of 1/2 of a bad contract, ...

No - they are co-owners of 1/3 of a bad contract...

Quote:

Tigger wrote: Quote: Unless AInc(W) shows up with Eyetechs prior written consent, the transfer from AInc(W) to ITEC was illegal. ... the only one who has broken a law is Hyperion, they have either sold the OS to Itec illegally (Dandy's take on the situation) ...

What`s happening to your reading abilities?

I clearly wrote:

Quote:

Dandy wrote: ...the transfer from AInc(W) to ITEC was illegal.

and not:

...the transfer from Hyperion to ITEC was illegal.

_________________
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Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

This reflects my "take on the situation" best:

news.justia.com - 10-sep-07

Quote:

13. On April 24, 2003, Hyperion and Itec LLC ("Itec") entered into an agreement that purported to relate to Amiga Washington's rights under the Agreement. This contract is hereinafter referred to as the "Itec Contract." ... 20. At the time of the Itec Contract, Hyperion was a creditor of Amiga Washington because, for instance, Amiga Washington had breached its warranties in Article IV of the Agreement, to the substantial damage of Hyperion. 21. On information and belief, the purported transfer to Itec in the Itec Contract of Amiga Washington's rights under the Agreement, if any such rights existed following Amiga Washington's insolvency, was made by Itec and its insiders with the actual intent to hinder, delay or defraud creditors of Amiga Washington. 22. Because of §2.07 of the Agreement, and because of the failure of Itec to obtain prior written consent as required by §7.12 of the Agreement, the Itec Contract is invalid, void and otherwise unenforceable.

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

and the train of thought in #21 seems to loop us back to:
Quote:

Hyperion accuses AInc of coorporate fraud

http://amigaworld.net/modules/newbb/viewtopic.php?topic_id=23557&forum=2#388513

I suppose a loop is appropriate, this being about computer technology and all.

#6

_________________
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*Secrecy has served us so well*

@Dandy

Quote:

Dandy wrote: Well - the "other party" has been defined in the contract as the "AmigaOne Partners" - is that still "VERY VERY singular" in English? Furthermore those "Partners" are named: Hyperion and Eyetech. Still sounds "VERY VERY singular", eh, doesn`t it?

Yes absolutely as a bunch of us has pointed out. I realize that English isnt your first language, but "the other party" does not mean 2 signatures.


Quote:

...the transfer from AInc(W) to ITEC was illegal.

Again could you point to a law they violated in doing that? As I pointed out there is nothing illegal in AI(W) selling something to a creditor, especially at a fair market value.

Quote:

...the transfer from Hyperion to ITEC was illegal.

The problem is thats the only transfer we know about they may be illegal. You need to decide if we are talking about illegal actions (Hyperion-Itec) or the AI(W)-Itec sale (perfectly legal).
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: Well - the "other party" has been defined in the contract as the "AmigaOne Partners" - is that still "VERY VERY singular" in English? Furthermore those "Partners" are named: Hyperion and Eyetech. Still sounds "VERY VERY singular", eh, doesn`t it? Yes absolutely as a bunch of us has pointed out. I realize that English isnt your first language, but "the other party" does not mean 2 signatures.

You certainly can point me to where in the contract this is defined?

Quote:

Tigger wrote: Quote: ...the transfer from AInc(W) to ITEC was illegal. Again could you point to a law they violated in doing that? As I pointed out there is nothing illegal in AI(W) selling something to a creditor, especially at a fair market value.

14.
Amiga Washington did not give its prior written consent to the ITEC contract.

15.
Eyetech did not give its prior written consent to the ITEC contract.

16.
On information and belief, a common core of major investors, shareholders, officers and directors were directly involved in the affairs of Amiga Washington and ITEC on and prior to April 24, 2003. This common core of individuals included Mr. William McEwen, Mr. Barrie Jon Moss, Mr. Pentti Kouri and Mr. John Grzymala. ITEC, and this common core of major shareholders, officers and directors werde therefore insiders of Amiga Washington within the meaning of RCW 19.40.011.

...

18.
On information and belief, on, before and after April 24, 2003, ITEC failed to give Amiga Washington a reasonable equivalent value for Amiga Washington's contractual rights that were purportedly transferred in the ITEC contract.

...

21.
On information and belief, the purported transfer to Itec in the Itec Contract of Amiga Washington's rights under the Agreement, if any such rights existed following Amiga Washington's insolvency, was made by Itec and its insiders with the actual intent to hinder, delay or defraud creditors of Amiga Washington.

22.
Because of §2.07 of the Agreement, and because of the failure of Itec to obtain prior written consent as required by §7.12 of the Agreement, the Itec Contract is invalid, void and otherwise unenforceable.

...

24.
By the explicit admissions of the ITEC/KMOS Contract, the insiders of ITEC were the insiders of KMOS. By necessary implication, then, the insiders of KMOS were and are insiders of Amiga Washington, which prevents KMOS, now purportedly known as Amiga Delaware, from being a good faith purchaser of the assets of Amiga Washington under the terms of RCW 19.40.081. On information and belief, the ITEC contract, and the ITEC/KMOS Contract were merely part of an elaborate scheme to hinder, delay or defraud the creditors of Amiga Washington.

...

68.
ITEC acquired its alleged rights to the Amiga trademarks through a fraudulent conveyance. As such, those alleged rights are invalid and unenforceable.

...

76.
By reason of the foregoing, Amiga Delaware has violated §32(1) and §43(c) of the Lanham Act, 15 U.S.C. §1114(1) & 1125(c).



Do you need more?

Quote:

Tigger wrote: Quote: ...the transfer from Hyperion to ITEC was illegal. ... You need to decide if we are talking about illegal actions (Hyperion-Itec) or the AI(W)-Itec sale (perfectly legal).

Mate - just in case that you didn't notice it yourself in the meantime - I decided quite a while ago to talk about the illegal AI(W)->Itec sale - but appearently you are so confused that you mix up the facts each time the AInc(W)/ITEC deal is mentioned...

_________________
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Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

Dandy wrote: You certainly can point me to where in the contract this is defined?

Section 7.12 , really read it again.

As for you other comments:

Quote:

14. Amiga Washington did not give its prior written consent to the ITEC contract.

Nor does it need to according to 7.12, again please read it before commenting again.

Quote:

15. Eyetech did not give its prior written consent to the ITEC contract.

Because of there affirmative defense, Hyperion needs to prove this is true and even if true, and Eyetech need to give prior written consent (which I disagree that they need to), then we still have laches which is going to get rid of this issue.


Quote:

16. On information and belief, a common core of major investors, shareholders, officers and directors were directly involved in the affairs of Amiga Washington and ITEC on and prior to April 24, 2003. This common core of individuals included Mr. William McEwen, Mr. Barrie Jon Moss, Mr. Pentti Kouri and Mr. John Grzymala. ITEC, and this common core of major shareholders, officers and directors werde therefore insiders of Amiga Washington within the meaning of RCW 19.40.011.

An actul law they think they broke, however since the leaked document shows good value given for the assets, there is no violation of RCW 19.40.011.

Quote:

18. On information and belief, on, before and after April 24, 2003, ITEC failed to give Amiga Washington a reasonable equivalent value for Amiga Washington's contractual rights that were purportedly transferred in the ITEC contract.

First of all, in reality this has nothing to do with the Hyperion case, secondly due to the leaked fax we know this isnt true.

Quote:

21. On information and belief, the purported transfer to Itec in the Itec Contract of Amiga Washington's rights under the Agreement, if any such rights existed following Amiga Washington's insolvency, was made by Itec and its insiders with the actual intent to hinder, delay or defraud creditors of Amiga Washington.

Again they paid $10M for the assets, so no defrauding.

Quote:

22. Because of §2.07 of the Agreement, and because of the failure of Itec to obtain prior written consent as required by §7.12 of the Agreement, the Itec Contract is invalid, void and otherwise unenforceable.

First of all they werent Bankrupt or Insovent, so 2.07 doesnt apply. And this points out the weakness of the entire Hyperion case. Even if AI had declared bankruptcy, Hyperion still has to deliver the code for $25K. Nothing in 2.07 ends the contract, thats another of those too weak items that Ben put into this contract.


Quote:

24. By the explicit admissions of the ITEC/KMOS Contract, the insiders of ITEC were the insiders of KMOS. By necessary implication, then, the insiders of KMOS were and are insiders of Amiga Washington, which prevents KMOS, now purportedly known as Amiga Delaware, from being a good faith purchaser of the assets of Amiga Washington under the terms of RCW 19.40.081. On information and belief, the ITEC contract, and the ITEC/KMOS Contract were merely part of an elaborate scheme to hinder, delay or defraud the creditors of Amiga Washington.

Again, $10M purchase price precludes this.

Quote:

68. ITEC acquired its alleged rights to the Amiga trademarks through a fraudulent conveyance. As such, those alleged rights are invalid and unenforceable.

We've seen from the new paperwork (and the new trademark info) that this is not true.

Quote:

76. By reason of the foregoing, Amiga Delaware has violated §32(1) and §43(c) of the Lanham Act, 15 U.S.C. §1114(1) & 1125(c).

Not according to the guy who did the US trademark investigation.



Quote:

Mate - just in case that you didn't notice it yourself in the meantime - I decided quite a while ago to talk about the illegal AI(W)->Itec sale - but appearently you are so confused that you mix up the facts each time the AInc(W)/ITEC deal is mentioned...

But you keep not coming up with an actual law that broken. For something to be illegal, you have to break a law. The Itec-Hyperion contract is possibly a Felony Fraud, but you were listing no law that the AI(W)-Itec has broken. Now you are quoting Hyperion old RCH statute comments, which made sense (and I actually pitched in 2004 timeline) before the Garry Hare fax came to light, but now, millions of dollars more in a purchase price then what is owed to the debtors. AI(W) didnt pay all there bills, but that doesnt help Hyperion win there case given the document shown over the last few weeks.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: You certainly can point me to where in the contract this is defined? Section 7.12 , really read it again.

Sorry - my copy somehow got corrupted - can you provide a link to the contract, please?

Quote:

Tigger wrote: As for you other comments: Quote: 14. Amiga Washington did not give its prior written consent to the ITEC contract. Nor does it need to according to 7.12, again please read it before commenting again.

Again: Please give a link to the contract...

Quote:

Tigger wrote: Quote: 15. Eyetech did not give its prior written consent to the ITEC contract. Because of there affirmative defense, ...

Would you care to explain in what kind of affirmative defense you think Eyetech is in?


Quote:

Tigger wrote: Quote: 16. On information and belief, a common core of major investors, shareholders, officers and directors were directly involved in the affairs of Amiga Washington and ITEC on and prior to April 24, 2003. This common core of individuals included Mr. William McEwen, Mr. Barrie Jon Moss, Mr. Pentti Kouri and Mr. John Grzymala. ITEC, and this common core of major shareholders, officers and directors werde therefore insiders of Amiga Washington within the meaning of RCW 19.40.011. ...there is no violation of RCW 19.40.011.

We'll see...

Quote:

Tigger wrote: Quote: 18. On information and belief, on, before and after April 24, 2003, ITEC failed to give Amiga Washington a reasonable equivalent value for Amiga Washington's contractual rights that were purportedly transferred in the ITEC contract. First of all, in reality this has nothing to do with the Hyperion case, ...

The AInc(W)/ITEC deal has nothing to do with the Hyperion case?
Interesting point of view - and totally unexpected to hear from you.

Quote:

Tigger wrote: ... Quote: 22. Because of §2.07 of the Agreement, and because of the failure of Itec to obtain prior written consent as required by §7.12 of the Agreement, the Itec Contract is invalid, void and otherwise unenforceable. First of all they werent Bankrupt or Insovent, so 2.07 doesnt apply.

At least Bill McEwen declared at court that they were insolvent - that's enough for me. Lets just wait and see if it's enough for the judge as well...

Quote:

Tigger wrote: ...Hyperion still has to deliver the code for $25K. ...

No - they don't have to.
They have returned the $25k-cheque.

Quote:

taken from the document quoted above: 27. Hyperion rejected ITEC's effort to exercise rights under the Agreement and returned the $25,000 check.

If you took no money you dont have to hand over anything - easy as that.

Quote:

Tigger wrote: ... Quote: Mate - just in case that you didn't notice it yourself in the meantime - I decided quite a while ago to talk about the illegal AI(W)->Itec sale - but appearently you are so confused that you mix up the facts each time the AInc(W)/ITEC deal is mentioned... But you keep not coming up with an actual law that broken.

I'm no U.S. lawyer - not even a lawyer - so I certainly don't have to come up with §§...

Quote:

Tigger wrote: For something to be illegal, you have to break a law.

Sorry, but this is not true - at least not here in good, old Germany.
Here it is enough to break a contract that is covered by law to be illegal.

Or e.g. to increase the engine power of your car above what the manufacturer declared to be the standard (-> insurance fraud) and then drive the car in public traffic without being re-homologated is considered to be illegal.

Maybe "illegal" has a different meaning in English...

Quote:

Tigger wrote: ...but you were listing no law that the AI(W)-Itec has broken.

Just see above...

Quote:

Tigger wrote: Now you are quoting Hyperion old RCH statute comments,

Old?
I quoted from a document dated 10-Sep-2007 - and you call that old?
Is time really rushing that fast in the U.S.?

Quote:

Tigger wrote: ... AI(W) didnt pay all there bills, but that doesnt help Hyperion win there case given the document shown over the last few weeks.

Well, we'll see - all we have to do is waiting...

Last edited by Dandy on 13-Sep-2007 at 11:33 AM.

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

Mate - just in case that you didn't notice it yourself in the meantime - I decided quite a while ago to talk about the illegal AI(W)->Itec sale - but appearently you are so confused that you mix up the facts each time the AInc(W)/ITEC deal is mentioned...

It's not only the judge who got the right to be confused you know...

_________________
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@pixie

Quote:

pixie wrote: @Dandy Quote: Mate - just in case that you didn't notice it yourself in the meantime - I decided quite a while ago to talk about the illegal AI(W)->Itec sale - but appearently you are so confused that you mix up the facts each time the AInc(W)/ITEC deal is mentioned... It's not only the judge who got the right to be confused you know...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

Dandy wrote: Sorry - my copy somehow got corrupted - can you provide a link to the contract, please?

Sure:

AI vs Hyperion

Document 5, page 17 gets you 7.12.

Quote:

Quote: Because of there affirmative defense, ... Would you care to explain in what kind of affirmative defense you think Eyetech is in?

Not eyetech, Hyperion. Hyperion is making an affirmative defense because of that they have to prove that Eyetech did not approve the transfer in writing. To do that, they need a document from Eyetech or Alan to show up in court, I dont think either is going to happen even if the comment is true.

Quote:

Quote: ...there is no violation of RCW 19.40.011. We'll see...

Have you read the statute? Given the $10M+ buyback price, do you honestly believe AI have violated it?


Quote:

Quote: First of all, in reality this has nothing to do with the Hyperion case, ... The AInc(W)/ITEC deal has nothing to do with the Hyperion case? Interesting point of view - and totally unexpected to hear from you.

No, whether AI sold everything for too low a price has nothing to do with the Hyperion case.

Quote:

Tigger wrote: Quote: [quote] First of all they werent Bankrupt or Insovent, so 2.07 doesnt apply. At least Bill McEwen declared at court that they were insolvent - that's enough for me. Lets just wait and see if it's enough for the judge as well...

If Bill in a court of law declared he was king of France, would that make it so as well. Insolvency in US law has a definition, debts greater then assets. McEwen also lists a number of assets in his testimony, those assets a year later sell for over $10M, so they weren't legally insolvent at any time as far as been shown so far. If we use the accounting definition of insolvent, I think the Peck case shows they were insolvent before Nov 3, 2001, which would invalidate the entire clause in the contract, thats why its interesting that they are using Bolten's testimony to help prove there point.

Quote:

Quote: Tigger wrote: ...Hyperion still has to deliver the code for $25K. ... No - they don't have to. They have returned the $25k-cheque.

First of all they appear to have been paid in excess for $40K before the check and returning the check doesnt help Hyperions case. Itec tried to pay, Hyperion received the funds and then returned them, to the court, Itec acted in good faith, Hyperion doesnt get to decide not to honor the contract by not cashing a check.

Quote:

Quote: taken from the document quoted above: 27. Hyperion rejected ITEC's effort to exercise rights under the Agreement and returned the $25,000 check. If you took no money you dont have to hand over anything - easy as that.

Absolutely not, not in my country or in yours. If you sign a contract to sell something and the person pays you, you have to complete the deal.

Quote:

Quote: Tigger wrote: For something to be illegal, you have to break a law. Sorry, but this is not true - at least not here in good, old Germany. Here it is enough to break a contract that is covered by law to be illegal.

Sorry but that is absolutely true. "Not authorized by law" is in fact the first definition in my dictionary and unlawful is listed as a synonym. Has all three parties violated portions of the Nov 3, 2001 contract, absolutely, but that doesnt make anything they did illegal.

Quote:

Quote: Tigger wrote: Now you are quoting Hyperion old RCH statute comments, Old? I quoted from a document dated 10-Sep-2007 - and you call that old? Is time really rushing that fast in the U.S.?

You understand that #66 and the counterclaims of #39 (June 13) are basically the same document right? They have added Points 5, 26, 27, 59, 68, 70, 72, 77, (8 points) 6 of which are just alleging that Itec did or could do that same thing that AI(D) might do and two which bring up the 25K check and letter. The problem is that since June 13, we now have seen lots of documents about the transfers and have documents about the Trademarks, so still saying those havent occurred and that AI(D) doesnt own the trademarks and they should be given to Hyperion is more then a little silly on the behalf of Hyperion.
-Tig

Last edited by Tigger on 13-Sep-2007 at 05:53 PM.

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@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: Sorry - my copy somehow got corrupted - can you provide a link to the contract, please? Sure: AI vs Hyperion Document 5, page 17 gets you 7.12.

Thanks.
Now I can see where you're coming from.

But sorry - I can't see where you mean it says that just one signature of the AmigaOne Partners is needed to sign binding contracts.

That was the paragraph you were referring to:
"Page 17

...
7.12 Effect. The Agreement shall be binding upon and inure to the benefit of each party hereto, and their successors and assigns. Neither party shall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent."

Then I found somethinfg that seemed to support your point of view:
"Page 12

Article I.
Definitions

1.01 Definitions.
...
"Amiga One Partners" means Eyetech and Hyperion collectively;
..."

But the beginning of this very Agreement reads:
"Page 12:

(OEM) LICENSE AND SOFTWARE DEVELOPMENT AGREEMENT
------------------------------------------------

This agreement (this "Agreement" is made and entered into as of this 3 day of November 2001,

by and between:

1. Amiga Inc. (hereafter: Amiga) , a State of Washington , U.S.A. corporation with ...

and

2. Hyperion VOF (hereafter: Hyperion), a Belgium corperation with ...
3. Eyetech Group Ltd. (hereafter: Eyetech), an English corporation with ..."

Here it is clearly stated that this Agreement is between THREE parties.
So it is clear that Eyetechs and Hyperions signatures are needed collectively to sign an binding contract.

If we assume for a moment that your interpretation was the correct one and Eyetech and Hyperion VOF formed a "legal entity" for the AmigaOne/OS4 project, a legalised document must exist about them really forming such a corporation.

Two small paragraphs in an project agreement certainly aren't enough to prove that Eyetech and Hyperion formed such an entity where just one of them has to sign to make a contract valid.

So where is the evidence?

Quote:

Tigger wrote: Quote: ... Would you care to explain in what kind of affirmative defense you think Eyetech is in? Not eyetech, Hyperion.

Aha - I see.
Sorry - I read the "Comma" as "Full Stop" - my mistake.
Must be my advancing senescene...


Quote:

Tigger wrote: Hyperion is making an affirmative defense because of that they have to prove that Eyetech did not approve the transfer in writing. To do that, they need a document from Eyetech or Alan to show up in court, I dont think either is going to happen even if the comment is true.

And where do you see the problem here?
All they have to do when asked to proove that during the trial is to pull a letter from Alan out of their pockets, stating that Eyetech didn't agree to the transfer...

Quote:

Tigger wrote: Quote: We'll see... Have you read the statute? Given the $10M+ buyback price, do you honestly believe AI have violated it?

A clear "No" - I haven't read it.
I honestly believe there must be something wrong with the "$10M+" figure - it smells - just like the multi million $ deal with Kent...

Quote:

Tigger wrote: Quote: The AInc(W)/ITEC deal has nothing to do with the Hyperion case? Interesting point of view - and totally unexpected to hear from you. No, whether AI sold everything for too low a price has nothing to do with the Hyperion case.

Agreed...

Quote:

Tigger wrote: Quote: At least Bill McEwen declared at court that they were insolvent - that's enough for me. Lets just wait and see if it's enough for the judge as well... If Bill in a court of law declared he was king of France, would that make it so as well.

Hmmmm - I was always under the impression one has to say the truth at court.

Are you seriously trying to tell us that in the U.S. you can tell the judge at court you were "the King of France" and he believes that without checking if that's true (e.g. asking for the related documents)?

If a court bases a judgement on such a testimony (and other), are you saying annother court can dispute the basis for this legally binding judgement in annother case?

Is that meant to be a court or a "Punch and Judy show"?

I would think that if one court accepts a testimony as truth and bases an judgement on it, that this testimony will later be accepted by other courts without disputing it.

Otherwise you could as well dispute the judgement from the first case.

Quote:

Tigger wrote: Insolvency in US law has a definition, debts greater then assets. McEwen also lists a number of assets in his testimony, those assets a year later sell for over $10M, so they weren't legally insolvent at any time as far as been shown so far. ...

I would think the court checked the data he gave and found out that it was as he said.
Otherwise he would have lied at court with deceptive intentions and the judge would have sent McEwen to jail.

Mc Ewen can't have it both ways - he can't claim at one court AInc (W) is insolvent and later tell annother court they were not.
Either they were insolvent (who should know that better than the CEO), or they weren't.

And as Mc Ewens testimony that AINC(W) was insolvent already had been accepted/approved by one court, it now cannot be disputed by annother...


Quote:

Tigger wrote: Quote: No - they don't have to. They have returned the $25k-cheque. First of all they appear to have been paid in excess for $40K before the check

...but not for the buy-in/buy-back, as has been repeatedly explained; instead it was money to compensate Hyperions costs that arose by AInc(W) not fullfilling its contractual duties.

Quote:

Tigger wrote: and returning the check doesnt help Hyperions case. Itec tried to pay, Hyperion received the funds and then returned them, to the court, Itec acted in good faith, Hyperion doesnt get to decide not to honor the contract by not cashing a check.

Hmmmmm - lets say you sign a deal to sell something.
In the time between your signature and the payment for the deal by the other party it becomes more and more obvious that the contract itself might be part of an illegal, fraudulent scheme by that other party to ripp off creditors - are you saying that in the U.S. you have to fullfill this possibly illegal contract without clearifying its legality first - and possibly even if you are incuring a penalty by that?

Quote:

Tigger wrote: Quote: ... If you took no money you don't have to hand over anything - easy as that. ... If you sign a contract to sell something and the person pays you, you have to complete the deal.

Basically you are right.

But here in my country there is an exception to this rule:
If there is a suspect that the contract this deal is based upon is illegal, then you MUST NOT complete this deal without having made sure first that the contract does not violate valid law.

I understand that in the U.S. this is different and you MUST complete this deal - regardless of the contract possibly being illegal or not?

Quote:

Tigger wrote: Quote: Sorry, but this is not true - at least not here in good, old Germany. Here it is enough to break a contract that is covered by law to be illegal. Sorry but that is absolutely true. "Not authorized by law" is in fact the first definition in my dictionary and unlawful is listed as a synonym. Has all three parties violated portions of the Nov 3, 2001 contract, absolutely, but that doesnt make anything they did illegal.

I understand that "illegal" appearently in the English language has a different (stricter) meaning as in the German language.

Quote:

Tigger wrote: ... You understand that #66 and the counterclaims of #39 (June 13) are basically the same document right? They have added Points 5, 26, 27, 59, 68, 70, 72, 77, (8 points) 6 of which are just alleging that Itec did or could do that same thing that AI(D) might do and two which bring up the 25K check and letter. The problem is that since June 13, we now have seen lots of documents about the transfers

Yes, we saw lots of documents - but appearently we interpret them differently.

Quote:

Tigger wrote: and have documents about the Trademarks, so still saying those havent occurred and that AI(D) doesnt own the trademarks and they should be given to Hyperion is more then a little silly on the behalf of Hyperion.

Why "more than a little silly"?
I take it they try to get the maximum out of the trial.
And to get the 100% you are aiming at, you have to claim 150%.

That's normal behaviour at court, I'd say - claim as much as you can and see how much of it you get...

Last edited by Dandy on 14-Sep-2007 at 10:33 AM.
Last edited by Dandy on 14-Sep-2007 at 10:28 AM.

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Dandy
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