@fairlanefastback

Fun with insolvency here (532 comments):
http://ann.lu/comments2.cgi?view=1062986091&category=forum&start=1&490

#6

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@Lou

Quote:

So Tapul SA invested $1,000,000 hence Gary Hare should get paid....and......so Amino shares were bought for $240,000...is that the loan? Why didn't any of that money go to Bolton Peck???

More of the Garry Hare story to digest:
Interview with KMOS CEO Garry Hare (25-Mar-2004)

Live! Q&A IRC Session with KMOS CEO Garry Hare - March 13, 2005 (post#106)

IRC Follow-up from Garry Hare - March 21, 2005

All the above extremely insightful and well worth a close read.

#6

Last edited by number6 on 28-Aug-2007 at 04:50 PM.

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@Mrodfr

Quote:

lots of new files, here: http://news.justia.com/cases/amigahyperion/

Hum ???

Where ? The newest file there is from August the 22th, so amost a week ago...

Last edited by abalaban on 28-Aug-2007 at 05:09 PM.

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@number6

Quote:

number6 wrote: @Tigger Could you give relevant dates that would be important regarding insolvency? I'm curious to know at what point in time you feel it would be relevant.

April 23, 2003 - Itec buys the OS from AI
April 24, 2003 - Hyperion signs a contract with Itec to give them the OS for 25K.

After those two events, AI isnt part of the contract, if they declared bankruptcy on the April 25, 2003 and the clause is enforcable it doesnt matter because AI isnt part of the contract. Thats why the KMOS contract from August 30, 2004 doesnt matter especially for the New York case.
-Tig

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@COBRA

Quote:

COBRA wrote: Actually, there's a bit more to it than that. This document is proof that Amiga Washington considered itself the owner of all Amiga intellectual property, including OS4, back in 2004, and by this they disprove of a transfer of such IP to ITEC in 2003. .

Actually its not, read recital A and recital B, it talks about Itec and Loan Facility Agreement and a Security Agreement between them and AI(W) both dated in 2003. If anything its proof that the transfer to Itec did occur though apparently AI had the right to reacquire the items at a future time. In addition, as has been pointed out several times, the New York lawsuit is about the contract between Itec and Hyperion, and this document has nothing to do with that, and even the bankruptcy/insolvency clause has nothing to do with that.
-Tig

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@Tigger

Quote:

April 23, 2003 - Itec buys the OS from AI April 24, 2003 - Hyperion signs a contract with Itec to give them the OS for 25K. After those two events, AI isnt part of the contract, if they declared bankruptcy on the April 25, 2003 and the clause is enforcable it doesnt matter because AI isnt part of the contract. Thats why the KMOS contract from August 30, 2004 doesnt matter especially for the New York case.

ok. And from my link above:
Quote:

Bill McEwen testified on August 7, 2003 that Amiga is "insolvent"

Forgive me for asking, but what date prior to August 7, 2003 WERE they really insolvent? Testifying in August only means they were insolvent prior to that date.

#6

Last edited by number6 on 28-Aug-2007 at 10:02 PM.

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@number6

Quote:

number6 wrote: Forgive me for asking, but what date prior to August 7, 2003 WERE they really insolvent? Testifying in August only means they were insolvent prior to that date.

As I've stated before, McEwen's statements really dont matter. He's not the CFO, he in fact points out that they have the trademarks, etc which have a value higher then the external debt, that means according to US Bankruptcy laws they aren't insolvent. Lets be honest, this document sells the trademarks, rights, etc for 4M shares of stock, the last time that stock sold it went for $2.50 a share, so thats $10M an insolvent company doesnt have $10M worth of assets. In addition, what keeps getting glossed over, is that even if AI were insolvent, and even if that clause were enforced by the courts, Hyperion still has to give the OS to AI for the 25K they have paid, they havent done it, they are clearly in violation. And as someone clearly pointed out by showing the ANN thread from 2003, everyone knew about McEwens comments back in 2003, using that 4 years later in an effort to invalidate a contract with Itec is just silly.
-Tig

Last edited by Tigger on 28-Aug-2007 at 10:50 PM.

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@Tigger

I appreciate your response. I am merely trying to boil down one line of discussion here to a few lines, because most people are intimidated by the vast number of posts they have to translate and fine tune as to meaning.
I was trying to close out one simple train of thought in these threads by asking you:
Quote:

Could you give relevant dates that would be important regarding insolvency? I'm curious to know at what point in time you feel it would be relevant.

You supplied those relevant dates you felt important in response to my query:
Quote:

April 23, 2003 - Itec buys the OS from AI April 24, 2003 - Hyperion signs a contract with Itec to give them the OS for 25K. After those two events, AI isnt part of the contract, if they declared bankruptcy on the April 25, 2003 and the clause is enforcable it doesnt matter because AI isnt part of the contract. Thats why the KMOS contract from August 30, 2004 doesnt matter especially for the New York case.

Based on your above summation, I had to ask:
Quote:

Forgive me for asking, but what date prior to August 7, 2003 WERE they really insolvent?

It seems from your last response that you do not really consider the date of actual insolvency vs the dates you supplied to be pertinent to anything that follow from a legal perspective.

Again, thank you for your reponse.

#6

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@number6

The issue is according to US bankruptcy law, I dont think they were insolvent until some time after this August 30, 2004 agreement. They have to be insolvent before the April 24, 2003 date to help Hyperion's case that they and Eyetech have a license forever to sell the OS. Even if that is true, nothing in the contract says that if the insolvency clause occurs, the rest of the contract is void. Which means Itec still gets the OS for 25K. Thats why the entire they were insolvent arguement doesnt really help Hyperion. Even if the clause is legal and AI was insolvent, Itecs contract still is legal, still is binding, and still needs to be lived up to by Hyperion.
-Tig

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@Tigger

Iow, if the insolvency issue holds Hyperion at best may get to distribute OS4 forever but they still would have to turn over the source code to whoever is legally deemed to hold the contract.

But the cease and desist from Amiga Inc. has nothing to do with either the insolvency or the contract but for IP infringement! So it has to be proven who is the legal owner of the IP? Surely someone has to have ownership one way or another?

Since the contract issue seems so important can the contract itself be considered an asset?

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@Tigger

Quote:

Actually its not, read recital A and recital B, it talks about Itec and Loan Facility Agreement and a Security Agreement between them and AI(W) both dated in 2003. If anything its proof that the transfer to Itec did occur though apparently AI had the right to reacquire the items at a future time.

Tig, you can't just take a contract with another company (two other companies in fact) and keep exchanging it between two companies as it suits you, without the written permission of all parties involved, if the contract states that a written permission is required. Not even in the US can you do that. AInc/ITEC's big problem is that they do not have a legally valid transfer to ITEC, with the signatures of the parties involved. Their argument is that the parties agreed indirectly, by dealing with ITEC. This document however counters that argument, because it proves that Amiga Washington themselves did not consider ITEC to be the legal owner of the OS4 contract. If they are going to claim what you suggest, that they at some point re-acquired the contract from ITEC, then they have to show two legally valid transfers, one from AI(W) to ITEC, and another from ITEC back to AI(W).

Quote:

In addition, as has been pointed out several times, the New York lawsuit is about the contract between Itec and Hyperion, and this document has nothing to do with that

Since ITEC is mentioned in the contract, and this document is about transfer of the same rights from AI(W) to KMOS, which ITEC claim to have in the NY case, it has everything to do with it. If for a minute we forget about what a legally valid transfer is, and consider that these transfers were in fact made and were valid, from AI(W) to ITEC and then back from ITEC to AI(W) (so they can sell it to KMOS in 2004), then it means that ITEC no longer has those rights, and thus it also kills their NY case.

@Tigger

Quote:

In addition, what keeps getting glossed over, is that even if AI were insolvent, and even if that clause were enforced by the courts, Hyperion still has to give the OS to AI for the 25K they have paid, they havent done it, they are clearly in violation.

The problem is Tigger, that AI(W) never paid 25K to Hyperion.

@Tigger

Quote:

Tigger wrote: @number6 Quote: number6 wrote: Forgive me for asking, but what date prior to August 7, 2003 WERE they really insolvent? Testifying in August only means they were insolvent prior to that date. As I've stated before, McEwen's statements really dont matter. He's not the CFO, he in fact points out that they have the trademarks, etc which have a value higher then the external debt, that means according to US Bankruptcy laws they aren't insolvent. ...

B.T.W. - who decides/how is it decided how much value the trademarks actually have?

I mean - BillMcEwing could just claim they are worth 100 million of US $ - how would one verify such an claim?

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@Dandy

Insolvency is the inability to pay outgoings as they become due... it doesn't matter how many assets you have.

That means it doesn't matter if the Amiga assets were worth more than they owed.

Amiga also seem to have sold the assets to a third party. Those assets would include the contract they had with Hyperion. This is unlikely to invalidate Hyperions obligations.

The courts are unlikely to give Hyperion Amiga's assets... just as they did not allow Genesi to obtain Amiga's assets. Especially as Hyperion have been paid for work they have not delivered.

Great . . . More Smoke and Mirrors . .

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@Slick

Quote:

Insolvency is the inability to pay outgoings as they become due... it doesn't matter how many assets you have.

You mean, like in Bolton Peck's case...
Quote:

That means it doesn't matter if the Amiga assets were worth more than they owed.

You mean, like in Bolton Peck's case...

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@Tigger

Quote:

Tigger wrote: @number6 Quote: number6 wrote: Forgive me for asking, but what date prior to August 7, 2003 WERE they really insolvent? Testifying in August only means they were insolvent prior to that date. As I've stated before, McEwen's statements really dont matter. He's not the CFO, he in fact points out that they have the trademarks, etc which have a value higher then the external debt, that means according to US Bankruptcy laws they aren't insolvent. Lets be honest, this document sells the trademarks, rights, etc for 4M shares of stock, the last time that stock sold it went for $2.50 a share, so thats $10M an insolvent company doesnt have $10M worth of assets. In addition, what keeps getting glossed over, is that even if AI were insolvent, and even if that clause were enforced by the courts, Hyperion still has to give the OS to AI for the 25K they have paid, they havent done it, they are clearly in violation. And as someone clearly pointed out by showing the ANN thread from 2003, everyone knew about McEwens comments back in 2003, using that 4 years later in an effort to invalidate a contract with Itec is just silly. -Tig

So in April 2003, AInc. (W) sold all their trademarks to KMOS but later in August 2003 claims to have them?

Are we in "Back to the Future" or something?

@number6

Quote:

number6 wrote: @Lou IRC Follow-up from Garry Hare - March 21, 2005 All the above extremely insightful and well worth a close read. #6

So KMOS had OS 4 by March 21 of 2005. It must have been released then on Dec 24 of 2004, just like Hyperion said so in court. :D

@COBRA

Quote:

COBRA wrote: @Tigger Quote: In addition, what keeps getting glossed over, is that even if AI were insolvent, and even if that clause were enforced by the courts, Hyperion still has to give the OS to AI for the 25K they have paid, they havent done it, they are clearly in violation. The problem is Tigger, that AI(W) never paid 25K to Hyperion.

Maybe AI(W) didnt, but Itec definitely did, so surely you arent going to argue that point again.
-Tig

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@Lou

Quote:

Lou wrote: So in April 2003, AInc. (W) sold all their trademarks to KMOS but later in August 2003 claims to have them? Are we in "Back to the Future" or something?

The new document which is dated August 30, 2004 is the sale of the Trademarks to KMOS, KMOS wasnt even involved in the April 2003 negotiations and in fact I'm not sure they actually existed in April of 2003.
-Tig

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