@wolfe

Quote:

wolfe wrote: @COBRA ... Lets see; This whole issue can be handled by the Judge quickly . . . Eyetech is no longer in the Amiga community so their permission is not needed (this is for the Judge to rule) unless they step forward and say NO.

Wrong.
There's no relevance at court in Eyetech being in the Amiga community or not.
All that matters there is what is written in the contract.

Quote:

The contract reads: 7.12 Effect. ... Neither party shall assign or subcontract the whole or any part of this agreement without the other party's prior written consent.

Quote:

wolfe wrote: The judge can render that signature MUT.

Only if he judges according his own law and ignores public law...

Quote:

wolfe wrote: Hyperion signed the contract with ITEC, so permission is implied.

Permission implied?
Maybe...

Permission granted by signature?
Certainly not.

Quote:

wolfe wrote: AI/W sold OS4 & the contract to ITEC, so permission is implied.

The contract clearly requires "prior written consent" and not "implied permission".

Quote:

wolfe wrote: Or ITEC's signature can replace AI/W's.

AInc (W)'s signature is not missing, IIRC.
And ITEC's signature is not relevant with respect to the "prior written consent" clause in the contract for the transfer from AInc (W) to ITEC, as ITEC is not one of the AmigaOne partners.

Quote:

wolfe wrote: The judge can render that decision easily. ...

I would not bet on that...

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Dandy
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@Slick

Quote:

Slick wrote: If you can't pay your outgoings when they fall due you are insolvent.

Not according to Title 11 of the US code as I've pointed out lots of times so far. Insolvency occurs when debts exceed ASSETS according to the US Uniform code as described in Title 11 of that code. In fact the actual quote is:

"An entity is insolvent if its debts are greater than its assets, at a fair valuation, exclusive of property exempted or fraudulently transferred. "

So lets get over AI was insolvent arguement, this document helps prove that wasnt true on April 24, 2003 after which it basically doesnt matter, unless you can come up with millions more in debt we dont know about.
-Tig

Last edited by Tigger on 30-Aug-2007 at 05:27 PM.

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@Tigger

You're right... I checked the code... the US definition does say assets over liablilities (for a chapter 11 insolvency).

However that's not the accounting definition of insolvency... which is usually what corporates and the rest of the world use.

I'm unable to reconcile the difference at the moment.

Going back to the original definition of solvent... it means cashed up. Intangible assets because they are not liquid (easily turned into cash) are generally not considered when considering solvency.

I'm willing to consider you correct until such time as I can work out how the inconsistency is resolved.

It is possible that the legal and accounting definitions differ... but usually the courts use the current accounting definition.... not the other way around.

Accepting that you're correct then the issue of assets over liabilities is a relevant one... and there is little merit in an argument that suggests that Amiga did not have an excess of Assets over liabilities.

Perhaps Hyperion have made the same assumption I have?

Going back to your valuation question:
Using the sale price of Amiga as a basis for valuing Trademarks etc... and considering the amount paid for similar company names around the world a value of $5-$10 million would probably be quite justifiable... as that's what Bill paid for Amiga... and that's in excess of any liabilies Bill has managed to run up. The annual report is probably on file and can probably be obtained... to give you an exact answer.

We should keep an eye on the court findings... they may actually answer this question for us... as it sounds like it is one of the issues which must be clarified.

Moving on:
I've always assumed that a transfer of title even if it was poorly done is unlikely to be overturned by any court.... for the benefit of a third party (Hyperion).

The elements of a valid contract:
If you also consider that consideration passed (Hyperion accepted the money).... then the case is even more likely to be won by Amiga.

Follow the money:
I'm still wondering why Hyperion didn't accept the $2M. That ought to be looking like an awfully good offer right at this moment: A company that just had a liquidity crunch (Hyperion) is unlikely to be able to sustain this kind of litigation for long. Amiga on the other hand appears to be all cashed up and keen to spend.

Last edited by Slick on 30-Aug-2007 at 06:35 PM.

@Slick

Quote:

Follow the money: I'm still wondering why Hyperion didn't accept the $2M.

What are you referring to?

#6

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@Tigger

"at fair valuation" is key. Show us an independant analyst's report on the company's fair valuation, otherwise we are simply left with common sense IMO)figures of "worth nearly nothing". If a reputable independant analyst can say otherwise maybe a point can be made here. Otherwise I don't see any way for you to do so. The last go round on this since you had nothing to produce in this manner your strategy was to promise you would have mortaged your house in a bid to prove some worth, at least in your eyes. If this goes to a point of legal contention though either side might seek experts for such valuations. Without that happening this will just be a circular arguement as neither side has independant numbers to point to.

Quote:

So lets get over AI was insolvent arguement, this document helps prove that wasnt true on April 24, 2003

It dosen't prove they weren't insolvent then. In fact given Bill's deposition and this document together it seems more likely IMO they were insolvent for a very long and extended period of time.

You are very unlikely, I think, to convince Cobra and other like-minded individuals otherwise. And conversely you aren't about to give any quarter to opposing ideas. This is in an extreme mode of constantly repeating things on either side with no change in opinions on either end. Again this is another circular arguement.

Last edited by fairlanefastback on 30-Aug-2007 at 09:13 PM.

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@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: @Tigger [quote] Tigger wrote: Ha - how can they sell something they don't own? Why do you think they dont own the Trademarks etc, we went through this a few weeks ago? -Tig

Didn`t they claim that they sold "the Trademarks etc" - especially the "etc" - one year before that to ITEC?
So how could they own it then?

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Dandy
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@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: @Tigger [quote] Tigger wrote: Hmmmm - why do you insist on/expect written objections? The contract's wording clearly is "prior written consent" - not "later written objections": Three reasons 1) Hyperion is making an affirmative defense, they have to prove what they say is true, otherwise AI is considered right, so unless they get Eyetech comes forward and says we didn't approve it, they are considered to have approved it ...

Let me see:
Hyperion is making an affirmative defense now - in 2007.
The original contract between AInc (W) and Hyperion and Eyetech is from 2001.
AInc(W) appearently sold their assets twice - in 2003 to ITEC and in 2004 to KMOS - for each of the transactions they would have needed Eyetechs signature.
Its not on the documents AInc presented at court - so none of the claimed transfers can be valid - independently from the "affirmative defense" at court 3-4 years later.

So why should Hyperion have to prove that?

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Dandy
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@Slick

Quote:

Slick wrote: @Dandy Quote 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. end quote If you can't pay your outgoings when they fall due you are insolvent. It doesn't matter how much your IPO, Trademarks and other assets are worth. The value of Trademarks (or other intangibles) as reported in the balance sheet is usually based on purchase or sale prices. You normally can not revalue these items. You could value your intangibles at any time... but that valuation is not included in the balance sheet... except perhaps as a note in the accounts. You can often trade your way out of insolvency while your realisable assets exceed your liabilities (that means what you would get in a fire sale). You can also argue that your income is such that you can trade your way out of insolvency. Companies can go into administration at this stage... this is the step before liquidation. When you become insolvent your creditors can petition the court to liquidate your assets or put you into administration. Administration usually implies the company may trade its way out of the situation or is being kept running as a going concern (if it is worth more that way)... although sometimes it is just a step on the way to liquidation.

Mate, as I've stated before, I didn't ask what insolvency is, I asked:
"B.T.W. - who decides/how is it decided how much value the trademarks actually have?"
Perhaps I should re-phrase it to be clearer:
"Who decides/how is it decided how much value a trademark actually has?"

Generally meant - not related to this case, you know?
That`s what I`m interested in - not in exhausting explanations about AInc`s insolvency...

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Dandy
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@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: @Tigger [quote] Tigger wrote: @COBRA ... paragraph 7.12 basically says there are two parties (AI & the AmigaOne Partners) the language in fact precludes a third party in this area. ... Hmmmmm - but I seem to remember that it was stated in the same contract that "AmigaOne Partners" are Hyperion and Eyetech. And already the word "partners" is plural, which shows that there are more than one company involved. So I'd say your interpretation that there are only two parties to the contract is rather optimistic, least said.

Dandy, go read 7.12, it uses singular possessives party not parties, etc. It basically says they need a signature, they have a signature.
-Tig
[/quote]

It says the "AmigaOne Partners" party has to sign - and at the beginning of the contract "AmigaOne Partners" are defined as Hyperion and Eyetech - so both signatures are required - not just one of them.

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@Dandy

It says the "AmigaOne Partners" party has to sign - and at the beginning of the contract "AmigaOne Partners" are defined as Hyperion and Eyetech - so both signatures are required - not just one of them.

IMHO, no. I read it differently. As you say, the "partners" are defined, and as such one entity.

Hyperion + Eyetech = The "AmigaOne partners", meaning if one signs the other agrees. If not, that's a problem in the communication between Hyperion and Eyetech.


(Would be nice if all members of say the "DDWG" would have to sign all papers Individually to show they agree)

Last edited by Seer on 30-Aug-2007 at 10:09 PM.

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@Dandy

Quote:

Dandy wrote: Didn`t they claim that they sold "the Trademarks etc" - especially the "etc" - one year before that to ITEC? So how could they own it then?

They didnt sell the Trademarks, copyrights or DE to Itec, the sold the classic OS. The Trademarks, copyrights, etc were transferred to KMOS directly in August of 2004 by the document we are looking at as part of the discussion, the classic OS went to Itec in April of 2003 and then was sold to KMOS in October of 2003.
-Tig

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@Dandy

Quote:

Dandy wrote: Perhaps I should re-phrase it to be clearer: "Who decides/how is it decided how much value a trademark actually has?" Generally meant - not related to this case, you know? That`s what I`m interested in - not in exhausting explanations about AInc`s insolvency...

What someone will pay for it. KMOS paid 4M shares of KMOS stock for the AI ones, which given the stock price from other sales would set a value at $10M, which is much larger then the debt.
-Tig

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@fairlanefastback

Quote:

fairlanefastback wrote: "at fair valuation" is key. Show us an independant analyst's report on the company's fair valuation, otherwise we are simply left with common sense IMO)figures of "worth nearly nothing".

The sale to KMOS gives us a value of $10M for the trademarks Fairlane, we know that AI paid $5M fo them in 1999, valuing them as a few 100K so you can say they were insolvent doesnt make alot of sense does it?
-Tig

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@number6

Quote:

number6 wrote: @Slick Quote: Follow the money: I'm still wondering why Hyperion didn't accept the $2M. What are you referring to?

AI offered Hyperion $2M for everything and apparently was turned down. It was in the docs and several thought it was just a story McEwen had made up, but since Hyperions lawyer brought it up during the hearing, I'm guessing there is some validity to the offer.
-Tig

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@Tigger

Quote:

Tigger wrote: @fairlanefastback Quote: fairlanefastback wrote: "at fair valuation" is key. Show us an independant analyst's report on the company's fair valuation, otherwise we are simply left with common sense IMO)figures of "worth nearly nothing". The sale to KMOS gives us a value of $10M for the trademarks Fairlane, we know that AI paid $5M fo them in 1999, valuing them as a few 100K so you can say they were insolvent doesnt make alot of sense does it? -Tig

Value changes over time Tig. Especially in technology and especially when you do nothing of positive value on the product front. Let alone market fluctuations. In 1999 almost anyone could announce an IPO and make money. Thats no longer the case and even many laymen know that. Nor was it the case anymore even by 2003 or 2004. The market is not the same, let alone the the factor of the time that passed and has continued to pass. Amiga is irrelevant in the technology world of today. Its a cold, hard, yet simple fact. And moving money from one firm someone has a stake in to another firm they also have a stake in is not what deems fair valuation. Fair valuation is an unbiased evaluation of what it would get on the real open market.

Last edited by fairlanefastback on 30-Aug-2007 at 10:40 PM.
Last edited by fairlanefastback on 30-Aug-2007 at 10:37 PM.

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@Tigger

Quote:

Tigger wrote: @number6 AI offered Hyperion $2M for everything and apparently was turned down. It was in the docs and several thought it was just a story McEwen had made up, but since Hyperions lawyer brought it up during the hearing, I'm guessing there is some validity to the offer. -Tig

They couldn't come up with the $2.5 million for Kent, it would appear Hyperion may just be less gullible than Kent was.

Last edited by fairlanefastback on 30-Aug-2007 at 10:41 PM.

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@Dandy

Quote:

Dandy wrote: Let me see: Hyperion is making an affirmative defense now - in 2007.

True, and they said they would prove that Eyetech did not approve the transfer from AI to Itec. So until they actually do that, it is assumed that they did approve the Transfer, thats the rules under an affirmative defense.

Quote:

The original contract between AInc (W) and Hyperion and Eyetech is from 2001.

True.

Quote:

AInc(W) appearently sold their assets twice - in 2003 to ITEC and in 2004 to KMOS - for each of the transactions they would have needed Eyetechs signature.

Untrue, they sold part of their assets to Itec, Itec eventually sold those to KMOS and then KMOS came back and bought the rest from AI, thats what the new document shows us.

Quote:

Its not on the documents AInc presented at court - so none of the claimed transfers can be valid - independently from the "affirmative defense" at court 3-4 years later.

Hyperion claims the transfers were not valid, they have to prove that, because they agree that they approved the transfers. They say that other companies didnt approve the transfers, so they need to prove that and show that . Hyperion has always acted as if the transfers did occur, AI(W) has acted as if the transfers did occur (once we found out about them), Eyetech has always acted as if the transfers did occur. Hyperion now claims that two of the three companies (Eyetech and AI(W)) did not approve the transfers, they need to prove that, otherwise the judge is going to assume everyone is ok with the transfer, because the only company complaining at this point, is the company that did approve the transfer.

Quote:

So why should Hyperion have to prove that?

Because they took an affirmative defense and said they would prove those things to the court in there filings.
-Tig

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@Tigger

Slick
Quote:

Follow the money:I'm still wondering why Hyperion didn't accept the $2M.

number6
Quote:

What are you referring to?

Tigger
Quote:

AI offered Hyperion $2M for everything and apparently was turned down. It was in the docs and several thought it was just a story McEwen had made up, but since Hyperions lawyer brought it up during the hearing, I'm guessing there is some validity to the offer.

Thanks Bill, but I am well aware of this one. I asked because I thought something "new" regarding such a figure had come to light and the source of the info was not referred to in his post.

#6

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@fairlanefastback

Quote:

fairlanefastback wrote: Value changes over time Tig.

Absolutely, but this is your timetable.

1999 - Fair Market Value = $5M
2003 - Fair Market Value < $0.2M (FLFB's number so they can be insolvent), this is also a funny number because Itec paid $247,000 for what they bought from AI according to the leaked fax.
2004 - Fair Market Value = over $10M

See why I dont believe your Fair Market number? In addition as others have pointed out, if we use those kind of values, then AI is insolvent before the signing of the contract in December of 2001, which means the whole thing is thrown out anyways.

Quote:

Fair valuation is an unbiased evaluation of what it would get on the real open market.

I agree, so since KMOS got a sweetheart deal at $10M or so, we probably should realize that the value of the Trademarks is much higher. You guys are so worried about trying to find the company insolvent (despite that clause not being enforcable in the US, and not really helping Hyperion in the case) that you are missing the big picture. AI(W) has/had 4M shares of stock on August 30, 2004 that should have been used to pay the companies debts and then be distributed to the stockholders. Why werent the debts paid, its alot more money then was owed, so who has the stock and why wasnt Bolten, Matt, etc paid?
-Tig

Last edited by Tigger on 30-Aug-2007 at 11:03 PM.

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@fairlanefastback

Quote:

fairlanefastback wrote: They couldn't come up with the $2.5 million for Kent, it would appear Hyperion may just be less gullible than Kent was.

But given the newly leaked documents, we know theres more money going around then many of us thought. In addition, I'm not sure we've seen the last of the Amiga Center at Kent. I'm not sure that our entire thread on here didnt help and not hinder AI. I have a feeling, that twice as much as they expected comment would never have come out if we the rabid amigaphiles hadnt been working on the story. Since Kent doesnt have a sponser yet, I wouldnt be surprised if it gets a new one that sounds like the old one.
-Tig

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