@Slick

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

Not under US law its not. As I keep pointing out, according the to Title 11 insolvency is the state where debts are exceeded by assets, so assets definitely matter.

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

No it doesnt mean that at all. Thats why Amiga was insolvent legally isnt true. During his comment, McEwen talks about the assets of the company, those assets have value, there value exceeds there debts and thus the company isnt insolvent.
-Tig

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

@COBRA

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COBRA wrote: 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).

No Cobra, I realize the nuances of this may confuse you but nothing here says that AI had reacquired the OS, it implies (and only implies) that they had the right to do it. KMOS bought Itecs rights to the OS and then went and bought the rest from AI(W), which is basically what KMOS (and Garry Hare) has been claiming since the beginning.

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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

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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,

Itec's case in New York is about Hyperion completing the contract they signed on April 24, 2003, that contract does not require Itec to be the owner of the 2001 contract for it to be completed.
-Tig

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

@Tigger

Quote:

Not under US law its not. As I keep pointing out, according the to Title 11 insolvency is the state where debts are exceeded by assets, so assets definitely matter.

I wonder how relevant Chapter 11 is?

1. AInc never declared chapter 11.
2. There is no definition of insolvency in the contract, and as this is an international contract, different interpretations could be applied. Nothing specifically states that chapter 11 shall apply.
3. As there are several declarations by the company officers stating that AInc was insolvent at the time, admitedly from other court cases, further strengthens tha case that AInc were insolvent.

I don't know if/when the latest documents can/will be submitted to court, but the longer this case goes on the more information comes to light which seems to stregthen Hyperions case.

_________________
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."

@Swoop

Quote:

Swoop wrote: @Tigger Quote: Not under US law its not. As I keep pointing out, according the to Title 11 insolvency is the state where debts are exceeded by assets, so assets definitely matter. I wonder how relevant Chapter 11 is? 1. AInc never declared chapter 11.

Title 11, not chapter 11, chapter 11 is a form of bankruptcy, Title 11 is a part of the US code that concerns Bankruptcy, Insolvency and Liquidation.

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2. There is no definition of insolvency in the contract, and as this is an international contract, different interpretations could be applied. Nothing specifically states that chapter 11 shall apply.

Since the Federal court in Washington is the venue in case of a dispute, US law will be applied and noone is talking about Chapter 11, we are talking about Title 11 part of the US federal code, and the only part that mentions the term Insolvency.

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3. As there are several declarations by the company officers stating that AInc was insolvent at the time, admitedly from other court cases, further strengthens tha case that AInc were insolvent.

We have a single declaration from McEwen to that effect and he also talks about there assets which by Title 11 means they werent insolvent if they exceed the debts, which given the value assigned in Aug 30,2004 means they were not insolvent.

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I don't know if/when the latest documents can/will be submitted to court, but the longer this case goes on the more information comes to light which seems to stregthen Hyperions case.

This latest document doesnt help Hyperion at all. Its probably hurts them in the long run.
-Tig

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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.

@Swoop

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2. There is no definition of insolvency in the contract, and as this is an international contract, different interpretations could be applied. Nothing specifically states that chapter 11 shall apply.

Most contracts have a clause regarding governing law when multiple countries are involved, dont know how they did it here though.

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AMiGA

@Tigger

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This latest document doesnt help Hyperion at all. Its probably hurts them in the long run.

Does this latest document involve the 2001 OS 4.0 agreement ?

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

@Spectre660

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Spectre660 wrote: @Tigger Quote: This latest document doesnt help Hyperion at all. Its probably hurts them in the long run. Does this latest document involve the 2001 OS 4.0 agreement ?

It involves the acquistion from AI(W) by KMOS on August 30, 2004 of basically everything. The transfer of the trademarks, copyrights, is also part of this, but we've seen them in the recent copyright/trademark info presented to the court.
-Tig

Last edited by Tigger on 29-Aug-2007 at 06:51 PM.

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

@Tigger

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It involves the acquistion from AI(W) by KMOS on August 30, 2004 of basically everything. The transfer of the trademarks, copyrights, is also part of this, but we've seen them in the recent copyright/trademark info presented to the court.

How does it fit in with the stock purchase agreement in PDF no 52 ;Pages 29-31 dated 7th October 2003 ?

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

@Spectre660

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Spectre660 wrote: How does it fit in with the stock purchase agreement in PDF no 52 ;Pages 29-31 dated 7th October 2003 ?

A partial timeline is something like this:

April 23, 2003 - Itec gets the rights to OS 4.0 (or classic OS)

April 24, 2003 - Itec and Hyperion sign the deal that is the subject of the NY case.

Oct 2003 - Itec sells its Amiga rights to KMOS. (this is the agreement you are talking about).

Aug 2004 - KMOS buys the rest of the rights from AI(W).

Its not different then what we thought before in reality, KMOS owns everything now. We now have a date and some more paperwork, but we kinda already had that from the Trademark filings.
-Tig

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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

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ct 2003 - itec sells its amiga rights to kmos. 9this is the agreement you are talking about.

follow up question :

why does Amiga INC up to 30 Aug 2004 still own any revenue from the Amiga and Hyperion BV and Eyeteck Ltd contract if the agreement was sold to ITEC "24 April 2003",and from ITEC to KMOS " 7th October 2003" ?.

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

@Tigger

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Maybe AI(W) didnt, but Itec definitely did

But since there is no legally valid transfer of the contract to ITEC (and as I explained in my previous posts this new document is further evidence for this), it means not only do they not have any rights under which to sue Hyperion in NY, Hyperion obviously have no obligations towards ITEC.

If assets exceeded debts on the sale of those assets to Itec,
Bolton Peck was paid!!!

That he was not is proof, to this self-appointed juror, that Amiga Inc. was legally insolvent according to US law as represented here in foregoing argument.

Noel

@COBRA

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COBRA wrote: @Tigger Quote: Maybe AI(W) didnt, but Itec definitely did But since there is no legally valid transfer of the contract to ITEC (and as I explained in my previous posts this new document is further evidence for this), it means not only do they not have any rights under which to sue Hyperion in NY, Hyperion obviously have no obligations towards ITEC.

You keep skipping over this. Nothing in the April 24, 2003 contract says that Hyperion does not have to comply with it until and unless a transfer occurs. Hyperion signed a contract with Itec, Itec has completed there portion of it, they want Hyperion to comply with there portion, case closed.
-Tig

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

@Tigger

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No Cobra, I realize the nuances of this may confuse you but nothing here says that AI had reacquired the OS, it implies (and only implies) that they had the right to do it. KMOS bought Itecs rights to the OS and then went and bought the rest from AI(W), which is basically what KMOS (and Garry Hare) has been claiming since the beginning.

Sorry, but in these papers we see AI(W) sell everyting (including OS4) directly to KMOS, and they warrant to have the rights to everything they're selling. You can't sell something you don't own, as simple as that.

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Itec's case in New York is about Hyperion completing the contract they signed on April 24, 2003, that contract does not require Itec to be the owner of the 2001 contract for it to be completed.

Since that contract specifically states that it is executed in accordance with the 2001 agreement between Amiga, Eyetech and Hyperion, it means that it is only valid if ITEC is the owner of the 2001 agreement, which we can now be sure is not the case, thus ITEC have no case in NY.

@NoelFuller

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NoelFuller wrote: If assets exceeded debts on the sale of those assets to Itec, Bolton Peck was paid!!! That he was not is proof, to this self-appointed juror, that Amiga Inc. was legally insolvent according to US law as represented here in foregoing argument.

Noel, this latest document shows that AI(w) received several 100k in funds after losing the case with Bolten, and they didnt pay then, we know Bill McEwen was paid a large sum of money by KMOS and he hasnt paid Bolten (and he as well as AI lost the case against Bolten), so why do you think not paying is proof of not having money?
-Tig

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

@COBRA

Sorry, but in these papers we see AI(W) sell everyting (including OS4) directly to KMOS, and they warrant to have the rights to everything they're selling. You can't sell something you don't own, as simple as that.

So, I guess that means KMOS should sue Amiga Inc then ?

Oh boy, this is fun

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~
Everything you say will be misquoted and used against you..
~

@Tigger

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You keep skipping over this. Nothing in the April 24, 2003 contract says that Hyperion does not have to comply with it until and unless a transfer occurs. Hyperion signed a contract with Itec, Itec has completed there portion of it, they want Hyperion to comply with there portion, case closed.

You keep missing the point, the April 24, 2003 contract specifically states that it is in accordance with the 2001 contract. A company can only do the buy-in, if they are a party to the 2001 contract, and the 2001 contract specifically states that it cannot be transferred to another company without the written permission of all parties involved.

@COBRA

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COBRA wrote: Sorry, but in these papers we see AI(W) sell everyting (including OS4) directly to KMOS, and they warrant to have the rights to everything they're selling. You can't sell something you don't own, as simple as that.

No, in fact Recitals A & B tell a different story then you are telling, KMOS basically has the right to do what they are doing, because they acquired the items from Itec per the agreements we saw from Oct 2003. I'm not sure whether you are being obstinate or whether this is a language thing now.

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Since that contract specifically states that it is executed in accordance with the 2001 agreement between Amiga, Eyetech and Hyperion, it means that it is only valid if ITEC is the owner of the 2001 agreement, which we can now be sure is not the case, thus ITEC have no case in NY.

Again, no. The contract says.

"Hyperion confirms that for the receipt of 25,000.00 USD, Hyperion shall transfer the ownership of the Object Code, Source Code and intellectual property of OS 4.0 to Itec in accordance with the provisions of the November 1, 2001 agreement between Amiga, Hyperion and Eyetech and to the extent it can do so under the existing agreements with third party developers whose work shall be integrated in OS 4.0."

Hyperion agrees to sell to Itec, Hyperion does not in any way have the right at this time to say this contract cannot go through. If Eyetech were to come forward, that would be one thing, but even then, given both Eyetech and Hyperions extraordinary joy at KMOS acquiring the OS (as announced in 2005), the judge is liable to not allow it. But nothing in the above contract says they Itec must be the owner of the contract (though they were) for this contract to be fulfilled.
-Tig

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

@Tigger

Quote:

Noel, this latest document shows that AI(w) received several 100k in funds after losing the case with Bolten, and they didnt pay then, we know Bill McEwen was paid a large sum of money by KMOS and he hasnt paid Bolten (and he as well as AI lost the case against Bolten), so why do you think not paying is proof of not having money?

When you have a court order saying that you have to pay money to someone and you don't do it, you better have a pretty good explanation if this comes up in front of another judge. If they're going to say something like "well we had money to pay but we forgot", I don't think the judge will find that amusing. If they did not pay Bolton Peck for such a long time, the court will assume that they had other expenses to cover and after they did, they did not have any money left to pay Mr. Peck. Which means their debts were greater than their assets.

However the problem is, as the judge pointed out, that it is not made clear in the 2001 contract what is exactly meant by insolvent. Thus the definition of insolvent as far as the contract is concerned is still open. The judge in his description did recognise the purpose of the clause, he stated that if Hyperion knew about AInc's financial problems only strengthens Hyperion's arguments (since it makes even more sense in that case to add such a clause, to protect your investments in case the company you make the contract with goes under). It means that if the definition of insolvent in the contract isn't clear, the judge will look at the purpose for which the clause was added (which is for Hyperion to protect their investments in case the other company goes under) and thus the judge will very likely grant that the clause was activated.

@COBRA

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COBRA wrote: You keep missing the point, the April 24, 2003 contract specifically states that it is in accordance with the 2001 contract

The actual quote is above, and its meaning is different then what you are supposing.

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A company can only do the buy-in, if they are a party to the 2001 contract

Can you point to the part of either contract that says that?

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and the 2001 contract specifically states that it cannot be transferred to another company without the written permission of all parties involved.

So you stance is that Hyperion wrote an illegal contract and committed felony fraud on a US company (ie Itec). Thats the other option, that you guys keep pushing. Hyperion sold a product they were not allowed to sell (though you cant find anyone but Hyperion to say that they couldnt sell it) and yet you dont seem to want Hyperion to pay the millions in fines and fees that would be due if such a judgement were to actually occur. If you sign a contract (as Hyperion did), you have to live up to it, or you are liable for the debts which occur because the contract wasnt lived up to. Thats millions of dollars in this case, due to some very large companies, giving them the OS is a much better option then this case. If this is there stance, Hyperion is bankrupt at this point, they just havent filed it yet.
-Tig

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