@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? -Tig

However much the funds received, on the basis of performance, they did not cover the debts. Bill & Fleecy also have claimed to have money owing. With the sale of assets the firm was effectively out of business. What is left to do but pay the debts? If the money was sufficient but sidetracked that is liability too. Performance is the test. By their actions we know them.

Noel

Last edited by NoelFuller on 29-Aug-2007 at 10:43 PM.

@COBRA

Quote:

COBRA wrote: Which means their debts were greater than their assets.

No, it doesnt, it means they werent forced to sell there assets to pay there debts. Even this document gets them 4M shares of KMOS stock, which sells for $2.50 a share to real companies, so that would put the value of there stock asset at $10M, thats much larger then there debt.

Quote:

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.

But since its mentioned with Bankruptcy they are liable to look at the US code, Title 11, which with the latest document easily proves that AI(W) was not insolvent, in fact they sold there trademarks etc in 2004 for stock worth $10M. Thats not an insolvent company especially when the company has much less then that in debt.
First of all bankruptcy clauses (or insolvency clauses) dont really work in US law. Secondly even if they clause were legal and they decided they were insolvent, it still doesnt get them out of the fact that they still have to deliver the code to Itec per the April 24, 2003 agreement.
-Tig

_________________
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@NoelFuller

Quote:

NoelFuller wrote: If the money was sufficient but sidetracked that is liability too. Performance is the test. By their actions we know them.

Noel, I invented the its all a scam to not pay there debts in 2004. That doesnt mean that under US law (specifically Article 11) they can be found to be insolvent, and even if they were found to be insolvent and they clause were upheld (it won't be, but lets say it is), Hyperion still has to give the code to Itec. Nothing in the contract says that if AI goes bankrupt or insolvent the contract goes away, and in US law they don't. Itec has a contract, they've paid the money, Hyperion hasnt lived up to it. Hyperion is going to lose, how painfully is the only question at this point.
-Tig

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

@Tigger

Quote:

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.

It's not a language thing or anything like that, the problem is that you cannot seem to differentiate between an asset like a trademark, a patent, a washing machine, or whatever, and a contract with other companies, which specifically states that it can only be transferred with the written, signed permission of all parties involved. The former they can do whatever they want to do with, the latter they cannot.

It looks like I have to highlight some parts of your quoting, because you appear to easily skip over some parts:

Quote:

"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."

Note the underlined parts.

Also, let me help you with a few quotes from the 2001 contract:

Quote:

by and between: 1. Amiga Inc (hereafter: "Amiga"), a State of Washington, U.S.A. corporation ...

Quote:

3.0.1 Amiga (Note that it does not say here "ITEC") may, at any time but no later than six (6) months after the completion of OS 4.0, elect to pay Hyperion Twenty Five Thousand USD (25,000 USD) in order to acquire the Object Code, Source Code and intellectual property of OS 4.0 pursuant to and within the limits set out in article 2.06 hereof.

Quote:

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.

I hope it's all clear to you now.

Last edited by COBRA on 29-Aug-2007 at 11:04 PM.

@COBRA

Quote:

COBRA wrote: Quote: 3.0.1 Amiga (Note that it does not say here "ITEC") may, at any time but no later than six (6) months after the completion of OS 4.0, elect to pay Hyperion Twenty Five Thousand USD (25,000 USD) in order to acquire the Object Code, Source Code and intellectual property of OS 4.0 pursuant to and within the limits set out in article 2.06 hereof. I hope it's all clear to you now.

Which continues to prove my point Cobra. We have two (and only two) options with regard to the April 24, 2003 contract.

1) Its Legal for Hyperion to sell the OS to Itec
2) Its not Legal for Hyperion to sell the OS to Itec

If we believe case #1, then Itec has paid the $25K and Hyperion has to give the code to Itec. Reasons to believe its legal, noone has objected to the transfer in the years it occurred until the lawsuit, letters from Ben Hermans and emails from him point to Itec being the successor company. Despite comments to the contrary from Hyperion we have no written objections to the transfer from Eyetech or AI(w).

If we believe case #2 then Hyperion has defrauded Itec, they owe them there money back, plus penalties in amount of either 2 or 4x the debt incurred by the belief that Itec was going to acquire the OS, thats millions of dollars, thats alot of money for a company that hasnt sold products in years to come up with. Reason to believe this theory, Hyperion basically claims its true in there documents to the Washington court. Given Itecs suit against them, its not the best stance to take. Itec tricked us that they were the successor company doesnt really work, unless Eyetech or AI(W) steps forward and says they didnt agree to it. (in actuality, given it involves the software, even Eyetech may not be helpful for Hyperion). Nothing in the contract says that Hyperion doesnt have to complete the contract if Itec isnt the successor, until Itec is the successor, they are not bound by the 2001 contract, but Hyperion is. So Hyperion is in violation of the contract, or committed felony fraud, thats the two options, and neither are pretty.
-Tig

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

@COBRA

Quote:

COBRA wrote: Quote: 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. I hope it's all clear to you now.

As has been pointed out to you multiple times, paragraph 7.12 basically says there are two parties (AI & the AmigaOne Partners) the language in fact precludes a third party in this area. That means that Hyperion's acceptance may (and probably should) be taken as acceptance of the transfer on behalf of the AO partners.
-Tig

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

@COBRA

So am I getting this right Cobra?

I'll change some names and play a little "game" so maybe it's easier for others to follow allong.


We have:

Amiga Inc.(W)
Hyperion
Eyetech

All 3 sign an agreement and all three need to agree to make changes or to sell the contract they made in 2001.

Then we have:

Itec -> Who I will refer to as "Microsoft" for those that are easily confused.
and
KMOS -> which I will refer to as "Apple" for the same reason.


Ok, so Hyperion and "Microsoft" go and make a deal and Hyperion signs/sells the contract the the first 3 parties signed in 2001 while "Microsoft" whispers in Hyperions ear, "No no it's OK, Amiga Inc.(W) said it's OK we are actually buying them, so please just sign here on the dotted line." So Hyperion got scammed by "Microsoft".

Later, in 2004, (while maybe poor little Amiga Inc. is not even aware of what big bad "Microsoft" tried to trick Hyperion into) Amiga Inc. decides to sell itself to "Apple".

Obviously, Hyperion entered into an agreement with "Microsoft". No doubt. But they are the only ones that signed or agreed to anything.

Clearly "Microsoft" has no signature from Amiga Inc.(W) showing they want to sell the OS4 contract, nor do they have a signature from Eyetech. All we have is that they told Hyperion they were going to be the "next" Amiga Inc. They scammed Hyperion.

Amiga Inc., obviously wouldn't try to sell the rights to OS4 to both "Microsoft" and then a year later try to sell it again to "Apple".


So there could be no way to believe that Amiga Inc.(W) approved of the Hyperion/Itec deal and certainly Eyetech didn't.

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@COBRA

Quote:

It's not a language thing or anything like that, the problem is that you cannot seem to differentiate between an asset like a trademark, a patent, a washing machine, or whatever, and a contract with other companies, which specifically states that it can only be transferred with the written, signed permission of all parties involved. The former they can do whatever they want to do with, the latter they cannot.

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. The judge can render that signature MUT.

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

AI/W sold OS4 & the contract to ITEC, so permission is implied. Or ITEC's signature can replace AI/W's. The judge can render that decision easily.

This is not a defense I would want protecting my investments . .

_________________
Avatar babe - Monica Bellucci.

@Tigger

Quote:

1) Its Legal for Hyperion to sell the OS to Itec 2) Its not Legal for Hyperion to sell the OS to Itec

Tig, I think you're a little confused here. The April 2004 contract is not a "sale agreement", it is the activation of the buy-in clause of the 2001 contract. Hyperion obviously cannot sell the OS if it contains intellectual property of another company, they could only ever sell it, it they exclusively own all IP in it, which we know is not the case, and never was the case. Therefore it is clearly number 2, it is certainly NOT legal for Hyperion to sell the OS to Itec (or to give to ITEC any material which has AI(W)'s IP associated with it), and in fact they did not sell it to Itec, thus they did not perform an illegal sale of anything.

What we actually have here is ITEC claiming to be the legal successor of AI(W), which AI(W) have obviously confirmed to Hyperion (remember, they are the same people) as it was part of their dirty games to try and escape their debts, so they wanted Hyperion to continue dealing with ITEC instead of AI(W). It just so happens that this was actually not the case (which is further proved by this document), they mislead Hyperion since they were not a legal successor after all, and we now have plenty of evidence which proves this, thus this is the end of the ITEC case in NY, and the AI(D) case in Washington.

Quote:

As has been pointed out to you multiple times, paragraph 7.12 basically says there are two parties (AI & the AmigaOne Partners) the language in fact precludes a third party in this area. That means that Hyperion's acceptance may (and probably should) be taken as acceptance of the transfer on behalf of the AO partners.

Tig, since the contract clearly defines that it is between 3 companies (numbered from 1-3 in the beginning of the contract), and it is clearly defined that AmigaOne partners consists of two seperate companies (Eyetech and Hyperion), with the two working on completely different things (one to provide the hardware, the other to provide the software), one company could never act in the name of the other company. Since the term "AmigaOne Partners" is defines as Hyperion AND Eyetech (not Hyperion OR Eyetech), common logic dictates that if AInc requires written permission from the "AmigaOne Partners", they need the permission of Hyperion AND Eyetech (not Hyperion OR Eyetech). I'm sure you as a programmer will understand the difference between the two logical operators AND and OR

Last edited by COBRA on 30-Aug-2007 at 08:55 AM.

@wolfe

Quote:

Eyetech is no longer in the Amiga community so their permission is not needed

They were very much in the Amiga community back in 2003 when ITEC claimed to be the successor of AI(W), there can be no excuse why they did not ask Eyetech's permission. However it is completely irrelevant whether they are in the Amiga community, AI(D) terminated their contract with Hyperion only, which means that Eyetech still have all the rights under the contract, and will continue to have it as long as AI(W) does not terminate the contract with Eyetech. If AI(W) would want to transfer the contract to another company right now, they would still need the written permission of Eyetech.

Quote:

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

This theory is exactly what this new document proves to be not the case. If AI(W) sold the OS to KMOS, it means they must have still been the owner of it. It it was transferred to ITEC back in 2003, then in 2004 only ITEC could have sold it to KMOS, not AI(W), unless ITEC sell it back to AI(W) first, for which they would, again, require the written permission of all parties in the contract. The judge also pointed out in his summary, when he rejected AInc's request for preliminary injunction, that the missing signed, written permission of all parties for the legal transfer of the contract is missing, as one of the reasons why preliminary injunction is rejected. What makes you think that the judge will suddenly change his mind and decided that written permission is not required after all (when it is clearly written in the 2001 contract that it is)?

Last edited by COBRA on 30-Aug-2007 at 09:14 AM.

@Slick

Quote:

Slick wrote: @Dandy Insolvency is the inability ...

Mate, 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?"

_________________
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Dandy
__________________________________________
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@COBRA

Quote:

COBRA wrote: @Tigger ... You can't sell something you don't own, as simple as that. ...

Hmmmmm - but nevertheless some madmen keep selling real estates on the Moon or the Mars...

_________________
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: @COBRA ... But since its mentioned with Bankruptcy they are liable to look at the US code, Title 11, which with the latest document easily proves that AI(W) was not insolvent, in fact they sold there trademarks etc in 2004 for stock worth $10M. Thats not an insolvent company especially when the company has much less then that in debt. ...

Ha - how can they sell something they don't own?

Some posts further up you called such an behaviour from Hyperion "fraud"!

_________________
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: @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

_________________
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: @COBRA ... Despite comments to the contrary from Hyperion we have no written objections to the transfer from Eyetech or AI(w). ...

Hmmmm - why do you insist on/expect written objections?

The contract's wording clearly is "prior written consent" - not "later written objections":

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.

So my (and many others) understanding is that the transfer from AInc (W) to ITEC cannot have been legal, as Eyetechs signature is missing up to today.

_________________
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: @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

2) Hyperion can't sue on behalf of Eyetech in the case, Hyperions case isnt that they didnt approve it, its that Eyetech didnt approve it, that may not be true at all, unless Eyetech enters the case and says we didnt approve it, it doesnt matter because Hyperion doesnt have permission or the right in this case to sue on behalf of Eyetech.

3) Laches - Its a legal term, we've discussed it before, basically it means Hyperion has acted so long as if Itec and then KMOS is the successor to go back now and say you dont have a signature to make it so, causes harm to KMOS (AI(D)) that is the fault of Hyperion. In this case, we've already seen enough evidence of this to make the case on this reason alone, unless we have a document from Eyetech saying they are losing there rights with the contract and they did not agree to it.
-Tig

_________________
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@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.

_________________
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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
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.

Last edited by Slick on 30-Aug-2007 at 03:49 PM.

@COBRA

Quote:

COBRA wrote: @Tigger Quote: 1) Its Legal for Hyperion to sell the OS to Itec 2) Its not Legal for Hyperion to sell the OS to Itec Tig, I think you're a little confused here. The April 2004 contract is not a "sale agreement", it is the activation of the buy-in clause of the 2001 contract.

First of all its a new contract, (and it is a sale agreement), you dont need a lawyer to draw up a document and the signature of the two Managing Partners to activate a buy in clause of another 2001 contract. You apparently didnt understand that entire section of the documents presented to the court which discussed this matter.

Quote:

in fact they did not sell it to Itec, thus they did not perform an illegal sale of anything.

Actually they did sell it, thats they point.

Quote:

It just so happens that this was actually not the case (which is further proved by this document), they mislead Hyperion since they were not a legal successor after all, and we now have plenty of evidence which proves this, thus this is the end of the ITEC case in NY, and the AI(D) case in Washington.

I'm sorry but these documents in fact prove quite the opposite of what you think. What exactly do you think Loan Facility Agreement and Security Agreement do mean? And again given Hyperions Affirmative Defense stance, they have to prove that Itec wasnt the successor for even that part of the case to be correct, and they cant do that unless Eyetech or AI(W) comes forward, we know the 2nd one isnt going to, and if Alan was going to show up to help Hyperion, he would have done it a long time ago, but there is no way he wants to get near a US courtroom.

Quote:

Since the term "AmigaOne Partners" is defines as Hyperion AND Eyetech (not Hyperion OR Eyetech), common logic dictates that if AInc requires written permission from the "AmigaOne Partners", they need the permission of Hyperion AND Eyetech (not Hyperion OR Eyetech).

Again, paragraph 7.12, uses singular, not plural terms for the permissions as we have remarked about for years (typical poor contract writing by Ben), since they have permission from Hyperion and the sale of the OS only concerns Hyperion (Eyetech is not mentioned in the section) even if Eyetech came forward, the judge may rule that only Hyperions approval (and not Eyetechs) was necessary to sell the OS to Itec.
-Tig

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@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

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