@umisef

Quote:

Uh, they are Itec's lawyers, so it's "those Amiga Inc guys" and "us Itec guys".

Well as "entity" you are right, but they are the IDENTICAL persons and lawyers, which makes their "we should not be forced to travel 3000 Miles for this (sic!)"-statement pretty laughable IMHO.

I think KMOS started this thing in Washington, hoping
1. to get a Judge not very keen on this matter, who would try to end it quick and in a way that it doesn't generate more work.
and
2. that Hyperion won't find a good enough lawyer to match the ReedSmith guys.

Both didn't work out up to now and so they are trying to pull the case to NY to shuffle the cards on the Judge and Hyperion-Lawyer.

All in all I'm pretty disappointed by the ITEC-Paper, as it has no real substance. It's only "BlaBla" and shows no proof for the claims and doesn't even provide a logical view of the known facts.
To name just a few:
- If it was just a sale, why was the 2001 contract even mentioned? They claim only to have the same "delivery condition", but those are just a few paragraphs, that could have been easily inserted in this extremly short contract. The result still would have fitted on an A4 sheet of paper.
- If Amino(Amiga..D?) was still active, active enough to sell it's remaing asstes, the contract was still active and valid, too. The consequence is, Amino has to acknowledge the sale to Hyperion(requierment of the 2001 Contract), they have to allow it, which was obviously not done either, or better said, which was not written down perhapes.
Which makes the sale itself illegal, because Hyperion has not the right to sell it to anyone. And therefore it makes the ITEC-Hyperion-"Sales"-Contract uninforcebal as you can't force someone to do something illegal. (perhapes better understandable with a small example: I could sign a contract with you (reader) about buying my neighbours car. Even if you pay me the money you can't force my neighbour to give you the car, and you can not force me to get you the car. In front of a court that is ;) )

All in all I find the docs of Mr. Kinsel much nicer to read, as they have a much clearer speech and aer not so bloated as the ReedSmith/Mr.Cock ones.

So just my 2ct :)
Wrote too much again
So let's see what the future/the next CourtDoc will bring.

@Dandy

Quote:

Dandy wrote: "Are you going to tell us, that in the US it requires a court decision to declare a company "insolvent", even if its CEO swore at court that they are insolvent - but a Joint Venture can be legally formed in a kind of subordinate clause in a contract about writing an OS?"

You dont have to have a court declare you insolvent, its just the easiest way to prove it. I'm not sure why you think it amazing that a contract can form a joint venture no matter what clause you are talking about.

Quote:

Quote: Do you think that if Bill had said they were bankrupt during his testimony that would have been accurate? Eigther that, or if the contrary is prooven, I would expect the court sends him to jail for a while...

If you read the testimony, it points to McEwen not knowing the definition of insolvency according to US law. Perjury is when you knowingly lie under oath, thats not what happened here. I can say under oath that I have $2000 in my bank account, if it later turns out I have $5000 because my paycheck showed up early, I didnt commit perjury.


Quote:

I think a court would look at the situation to see if it was accurate, after he swore it under oath. And then the court eigther finds out that his statement was accurate, or it finds out that he was perjuring. If the latter, he has to be sent to jail (thats what would happen here in Germany).

So they would look at it, but you dont want to actually look at the AI situation (see below) you are just saying AI is insolvent because McEwen said it, not actually looking at the assets vs the debts, you know what you want the court to do in the Microsoft case and what Bernd and I are doing in this case. At what level is testimony do you get to declare a company insolvent, I mean if Fleecy was on the stand and says it does it make it official, how about Ray Akey, I mean can the webmaster say in court they are insolvent and we declare it so.

Quote:

Sorry, Tig - I wasn't talking about this crap...

But thats what decides whether McEwen was accurate or not with his statement.
-Tig

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

@Dandy

Quote:

Dandy wrote: WTF are you talking about?

The new lawsuit has a number of 90K on it, because that is the amount of money taken in by AI on the coupons (1800 x $50). Hyperion is asking for that money to be given to them because they claim the sale of the coupons hurt them financially. My comment is that only about 600 of those 1800 (maybe less) actually have qualified to get the $50 back. To get the money you have to have bought an AmigaOne with OS 4. There are less then a 1000 total people who bought AmigaOnes and between the those who dont have coupons and those who bought there AmigaOnes used and thus dont qualify for the rebate and those who are basically too lazy to do the work to get the rebate we have maybe 600 who are owed money. Which makes it funny, because basically Hyperion is asking the court for 90K because there customers are owed about 30K.
-Tig

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

@Tigger

Quote:

The new lawsuit has a number of 90K on it, because that is the amount of money taken in by AI on the coupons (1800 x $50). Hyperion is asking for that money to be given to them because they claim the sale of the coupons hurt them financially. My comment is that only about 600 of those 1800 (maybe less) actually have qualified to get the $50 back. To get the money you have to have bought an AmigaOne with OS 4. There are less then a 1000 total people who bought AmigaOnes and between the those who dont have coupons and those who bought there AmigaOnes used and thus dont qualify for the rebate and those who are basically too lazy to do the work to get the rebate we have maybe 600 who are owed money. Which makes it funny, because basically Hyperion is asking the court for 90K because there customers are owed about 30K. -Tig

The problem is that those 1800 are all potential OS4 customers, and potentially would claim their rebate if/when new hardware was available. AInc received the monies from all 1800, and no one can say with any accuracy how many people are currently due a rebate, and how many in the future will claim a rebate. The problem with the rebate scheme, as I see it, is that according to the 2001 contract it was not Aincs right to run such a marketing scheme with out a written agreement with Hyperion.

_________________
Peter Swallow.
A1XEG3-800 [IBM 750FX PowerPC], running OS4.1FE, using ac97 onboard sound.

"There are 10 types of people in the world: those who understand binary, and those who don't."

@Dandy

Quote:

Dandy wrote: @syrtran It was NOT the president of a company stating "We only have $100 in the bank." - it was the president of a company swearing at a court under oath "We only have $100 in the bank.". Don't you think that makes a difference?

Not really, in this case both are true.

The question from the lawyer was:

Is Amiga as we sit here today financially solvent? The answer by McEwen was No. The problem is not financially solvent and legally insolvent are two different things, but noone wants to hear that. Do I think that 3 creditors should have pushed to force AI into bankruptcy at that time, absolutely, I tried to get Bolten and Matt to find a third and do that very thing back in 2003, but that doesnt mean that they would have been found insolvent, it just would have forced them to pay there debts.
-Tig

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

@Swoop

Quote:

Swoop wrote: The problem is that those 1800 are all potential OS4 customers, and potentially would claim their rebate if/when new hardware was available. AInc received the monies from all 1800, and no one can say with any accuracy how many people are currently due a rebate, and how many in the future will claim a rebate. The problem with the rebate scheme, as I see it, is that according to the 2001 contract it was not Aincs right to run such a marketing scheme with out a written agreement with Hyperion.

First of all technically the rebates are for AmigaOne and OS 4.0, so there arent going to be anymore Amigaones, so the majority of the people are out of luck. You can argue that no one can say with accuracy how many are due a rebate, but we know its less then 1000 because Hyperion says they sold less then a 1000 AmigaOnes with OS 4.0 in the legal documents. Also it may be accurate to say the rebate was in violation of the marketing clause, but they are claiming financial hardship from that, and given the situation they dont really have grounds to do that.
-Tig

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

@Spectre660

Quote:

Spectre660 wrote: @umisef Quote: Uh, they are Itec's lawyers, so it's "those Amiga Inc guys" and "us Itec guys". It would seem that ITEC and AMIGA(D) have different views on events. If the 24,750.00 paid was for a straight purchase of OS4 not subject to the 2001 agreement then there could have been no "buyback" between Hyperion and Amiga(W). Only one chunk of money was paid before AMIGA(W) filed the suit. Divide and rule .

You seem to be a little confused. First of all Amiga(W) didnt file any lawsuits. Second of all, several of us have pointed out that the 2003 agreement was a straight purchase agreement, in fact thre were huge arguements about it when the New York case came up. Thirdly noone has claimed that AI(W) carried out the buyback, in fact McEwen didnt even claim that, he claimed that the buyback had occurred and that AI(D) was the rightful that pretty much how everyone on AI's side sees it. Itec bought the OS and sold it to KMOS. The documents and press releases over the years have pointed to that as well.
-Tig

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

@Sneaky

Quote:

Sneaky wrote: All in all I'm pretty disappointed by the ITEC-Paper, as it has no real substance. It's only "BlaBla" and shows no proof for the claims and doesn't even provide a logical view of the known facts.

You realize that all those references in the document point to pages that are on pacer but that have yet to make it onto the Justia site, right? So no proof wouldnt be an accurate statement at all.

Quote:

To name just a few: - If it was just a sale, why was the 2001 contract even mentioned? They claim only to have the same "delivery condition", but those are just a few paragraphs, that could have been easily inserted in this extremly short contract. The result still would have fitted on an A4 sheet of paper.

They explained that in there response, I guess you need to read it again, and the case law they referenced would seem to support there comment.

Quote:

- If Amino(Amiga..D?) was still active, active enough to sell it's remaing asstes, the contract was still active and valid, too. The consequence is, Amino has to acknowledge the sale to Hyperion(requierment of the 2001 Contract), they have to allow it, which was obviously not done either, or better said, which was not written down perhapes.

First of all Amino is (Amiga (W) or Amiga (Washington), KMOS is Amiga(D) or Amiga (Delaware). I'm not sure what sale you are talking about, Hyperion signed the 2003 agreement so they obviously approved of that sale and took money. If you are talking about the sale of Amino's assets to KMOS, they released a huge press release all about how excited they were with the new owners and Ben Hermans said he was knew about it before it happened, so not sure what your point is.

Quote:

Which makes the sale itself illegal, because Hyperion has not the right to sell it to anyone. And therefore it makes the ITEC-Hyperion-"Sales"-Contract uninforcebal as you can't force someone to do something illegal. (perhapes better understandable with a small example: I could sign a contract with you (reader) about buying my neighbours car. Even if you pay me the money you can't force my neighbour to give you the car, and you can not force me to get you the car. In front of a court that is ;) )

Yeah, but as we talked about before, you would go to jail for felony fraud for doing that and be liable for the damages I incurred because I didnt get the car you sold me, in actuality, Hyperion has the ability to sell the OS unless Amino protests and they arent going to do that, so Hyperion needs to deliver, or do you think they should go to jail and be liable for millions in damages instead?
-Tig

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

@Tigger

Thanks for the correction.
not confused . a little sleepy. I meant Amiga (D ).

Most of AMIGA (D)'s case involves the buyback.
If Hyperion sold to ITEC in 2003 outside of the 2001 buyback clause then
How could Hyperion breach 3.01 ?

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

Here's my take.

Itec approached Hyperion about the 2003 Hyperion-Itec contract under false pretenses of being the AI(W) successor. The contract should be thrown out. Itec should be fined. Hyperion should be awarded damages because it carried on from there like Itec was the successor.

KMOS needs to prove it did acquire all of Amiga Inc.(W)'s assets.

Amino needs to prove it was never insolvent.

@Lou

Looks like several "Pentti" companies "Fingering" each other.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Spectre660

Quote:

Spectre660 wrote: If Hyperion sold to ITEC in 2003 outside of the 2001 buyback clause then How could Hyperion breach 3.01 ?

KMOS is basically confused on how Itec acquired the the OS, they thought Itec was the successor and they acquired the rights when they bought them from Itec, Itec says no, we bought the OS, you got the contract when you bought everything Amiga from Amino, not when you bought all of our Amiga assets from us. Someone suggested that when the KMOS document came out, because thats what it appeared to say as well. So were they in breach of 3.01, maybe not, however they also were playing KMOS for fools because despite telling KMOS that Itec was the owner of OS 4 to arrange the sale, they continually asked for money for the buyback saying Itec was short even though there is not way for Itec to be short 7200 or 8850 after paying at least $24750 of a $25000 price and with the OS bought outside the contract there is no covenant that requires paying all other charges before the buyback money is counted.
-Tig

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

@Lou

Quote:

Lou wrote: Here's my take. Itec approached Hyperion about the 2003 Hyperion-Itec contract under false pretenses of being the AI(W) successor. The contract should be thrown out. Itec should be fined. Hyperion should be awarded damages because it carried on from there like Itec was the successor.

Ok given that Hyperion approached first AI who wasnt interested in giving Hyperion 25K and then was sent to Itec who eventually was, do you still think that way? And I'm not sure how you can say Hyperion carried on like Itec was the successor, they took money and didnt give the OS, how is that acting like Itec is the successor?

Quote:

KMOS needs to prove it did acquire all of Amiga Inc.(W)'s assets.

That document was leaked a few weeks ago and posted here.

Quote:

Amino needs to prove it was never insolvent.

The KMOS document discussed above proves that as well.
-Tig

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

@Tigger

Quote:

KMOS is basically confused on how Itec acquired the the OS, they thought Itec was the successor and they acquired the rights when they bought them from Itec, Itec says no, we bought the OS, you got the contract when you bought everything Amiga from Amino, not when you bought all of our Amiga assets from us.

Would this mean that some arguments against Hyperion have to be wrong in at least one of the two lawsuits brought against them ?

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Spectre660

Quote:

Spectre660 wrote: Would this mean that some arguments against Hyperion have to be wrong in at least one of the two lawsuits brought against them ?

I think it means at least some of the statements made during the hearing were incorrect, Itec was never the successor, I dont think it actually effects anything KMOS is actually asking for, basically they are saying.

1) We cancelled the contract in December 2006 after giving Hyperion there 30 days to fix things or enter mediation.

2) Hyperion has illegally used our trademarks and potentially IP after that cancellation of the contract we want them to stop and pay damages for that.

3) Hyperion has been paid in excess of 25K for the buyback and has not yet delivered the code, we want the code and the extra money back.

All of that is still true, now are some facts confused about what Itec owned and what Itec didnt own in some of the documents, absolutely, but I dont think they change the case in any way except show there is even less reason for Itec to be joined and make it even more likely that Hyperion will lose in New York.
-Tig

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

@Tigger

Quote:

KMOS is basically confused on how Itec acquired the the OS, they thought Itec was the successor and they acquired the rights when they bought them from Itec, Itec says no, we bought the OS, you got the contract when you bought everything Amiga from Amino, not when you bought all of our Amiga assets from us.

It seems to have confused Garry Hare as well:
Quote:

KMOS purchased the OS asset from Itec.

#6

_________________
This posting, in its entirety, represents solely the perspective of the author.
*Secrecy has served us so well*

@number6

confused Lawrence R. #### the Most as he was present during this hearing were the assignments were addressed and is the lawyer who filed Itec's response.
------------------------------------------------------------------------

-UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
IN SEATTLE


AMIGA, INC., a Delaware )
corporation, )
)


Plaintiff, ) No. C07-631RSM
)


v. )
)
HYPERION VOF, a Belgium )
corporation, )


)


Defendant. )
)
)


MOTION FOR PRELIMINARY INJUNCTION


BEFORE THE HONORABLE RICARDO S. MARTINEZ


May 31, 2007


APPEARANCES:


For the Plaintiff: Scott Baker


and
Morgan Tovey
Reed Smith
Attorneys at Law


Lawrence R. ####
Cable, Langenbach, Kinerk & Bauer
Attorney at Law


For the Defendant: William Kinsel
Kinsel Law Offices
Attorney at Law
---------------------------------------------------------------------
THE COURT: Counsel, you are almost out of time if you
want to reserve five minutes. I do have one other question I
would like you to address. That is Hyperion's argument under, I
think it is, Section 7.12 of the agreement of the contract --


MR. BAKER: The insolvency issue.


THE COURT: Written permission was necessary before any
assignment of rights.


MR. BAKER: The assignment issue.


THE COURT: Right.


MR. BAKER: I would be happy to, your Honor. There were
two assignments. There were actually three events. The
signatory to this event was Amiga Washington Corporation. It is
called Amiga Washington. In 2003 they assigned Amiga Washington
assigned rights to a company call Itec, capital I T-E-C, not to
be confused with the EyeTech like the human eye. That assignment
was consented to. There is a written document, Hyperion signs
it, they knew of it, they consented to it.


Later, I can't remember if it was 2003 or 2004, but again it
is in the documents, Itec assigned the rights under these
agreements to a company called KMOS. K-M-O-S. Itec and KMOS are
effectively owned by the same people. They were related.
------------------------------------------------------------------------------------------------------------

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Spectre660

Quote:

Itec and KMOS are effectively owned by the same people.

"Effectively" owned?

ok. But Garry Hare in addition to being CEO of KMOS said:
Quote:

I have a minority stake in KMOS

To me this is not at odds with "effectively" owned, but does show something other than complete sole ownership.

The stranger thing to me was people being told to talk to KMOS about hardware licensing, based on the perceived right to license the OS.
Stranger still is KMOS making deals only to have them overriden by Bill McEwen.
On behalf of ITEC and Pentti?

#6

_________________
This posting, in its entirety, represents solely the perspective of the author.
*Secrecy has served us so well*

@number6

Quote:

number6 wrote: It seems to have confused Garry Hare as well: Quote: KMOS purchased the OS asset from Itec.

But that is true so Garry wasnt confused at all.
-Tig

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

@Spectre660

Quote:

Spectre660 wrote: @number6 confused Lawrence R. #### the Most as he was present during this hearing were the assignments were addressed and is the lawyer who filed Itec's response.

Its not like Larry works for KMOS, he know what McEwen tells him and shows him. McEwen would get confused between meeting at Gateway shows. As I said earlier the biggest confusion seemed to be at the hearing when the lawyers were jabbering.
-Tig

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