Quote:

Dandy wrote: Hmmmmm - but the contract does NOT say what has to happen (consequences, penalties) if Hyperion fails to have OS4 ready for release before March 1, 2002 - or does it?

No, it does not. Also missing March 1, 2002 in itself is not the problem. The problem is wether Hyperion was using "best effort" to reach that date. If they did not, it would be a material breach, which would allow Amiga to terminate the contract (which they finally attempted in 2006). Missing a 6 month deadline by several years, adding funtionality that was not requested and entering a contract for a vital part with a subcontractor that had no time limit whatsoever may very well be deemed such a material breach.

@stew

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One other twist. If Amiga went insolvent wouldn't any assets have to be sold to pay off creditors?

Before I make a fool of myself, I'll just inject that I only know the basics about such matters in the US. But here we go.....

In the US, insolvency is not quite equal to bankruptcy. Here's one explanation that I've pulled from the net....

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A good example of the difference between legal jargon and technical terms, as well as the difficulty in drawing clear lines between these categories, is the set of words that includes bankrupt, insolvent, and judgment-proof . Although not always used carefully, bankrupt means that you have been declared unable to pay your debts by a bankruptcy court, and is thus clearly a technical term. The word judgment-proof means that even if I win a judgment against you, you will almost certainly not be able to collect it. This is best categorized as legal jargon rather than a term of art. Insolvent falls somewhere in between, referring to someone who cannot pay their debts as they become due, or someone whose debts are greater than thier assets.

Bankruptcy is determined by a legal proceeding where such matters as ownership, responsibility, creditors, payments .... are determined by the courts.

Insolvency means you are not currently able to pay your debts or creditors and can quickly lead to bankruptcy. Insolvency can be a temporary condition corrected by asset infusions. Bankruptcy is a signed, sealed, legally proven condition witnessed by all involved parties.

As far as I know, in the US it is not legal to sell or seize the assets of an entity based on insolventcy alone. I can be insolvent today, borrow tons of money from my Mom and be fine again tomorrow. You must first press the entity into a bankruptcy through legal proceedings.

It's not unusual for a company to hide the fact they are insolvent. They may hide this fact as long as possible to avoid being pushed in to a bankruptcy by creditors while they try to regain their solvency by adding another partner or finding a buyer for the business . Also you may read stories about company officials that hide the financial problems while they gut the business as much as possible before the creditors and bankruptcy courts move in. A crummy and risky move for such officials.

*I don't think* (cause I don't know for sure), that CompanyB can claim that it now owns the property of CompanyA simply because CompanyA was at one time insolvent... at least not in the US.

Ok, feel free to smack me down with actual facts now.

Plaz

@Tigger

Quote:

Tigger wrote: ... I'm not ignoring anything, there isnt alot Hyperion is going to be able to do. The simple facts are ... 3) Did Hyperion violate the license after it was cancelled? Yes ...

I dont fully understand how an cancelled license can be violated?

My understanding up to now was that if a contract, an agreement or a license is cancelled, it is no longer existent.

How can one violate something that does not exist?

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@Dandy

You simply continue to use rights granted under that contract and ignore that it has been cancelled or you fail to do whatever is required of you in case of termination. Well, whatever the correct legalese for that thing is, I dont know, but thats the essence.

@Dandy

Strickly speaking I think it should have been said that the IP was violated once the license was cancelled.

Plaz

@umisef

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umisef wrote: But whether "they" (Amiga Inc Washington) were insolvent by August 2003 does not matter, because on April 23rd, 2003, Itec became "their" successor with respect to the contract. And I have yet to see anyone claim that Itec ever went insolvent.

I disagree, the contract was with Amiga Washington, and the clause activates the moment they are insolvent, not the moment Hyperion find out about it. ITec, succeeds in getting a contract with an already activated clause if anything it seems to me.

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And proving it is pretty much impossible --- especially if for 4 years, you have acted as if there was no insolvency.

I'm not sure of that, Hyperion could request their own discovery. And they can arrange a new deposition with Bill.

And if that is shown then Amiga Washington did not disclose a condition affecting their contract with Hyperion in a timely manner, hurting Hyperion's ability to do business with OS4.

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@umisef

Quote:

umisef wrote: @fairlanefastback Quote: Yet if its ambiguous by your own admission Uhm, the phrase i used was "rather unambiguous". Which means I am pretty damn sure what "transferring" and "acquiring" means.

My apologies on my mis-read. :)

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But the transfer of the contract from AIW to ITEC was never approved by the partners (Eyetech, Hyperion) hence it is illegal. So when AInc. went insolvent, they lost all rights.

@Lou

Unless Eyetech have approved (we havent heard from Eyetech)-
Unless Hyperion approving the transfer is enough.
Unless approval is not needed (Itec as legal successor to AmigaW)
Unless the part concerning the license on insolvence isnt illegal in itself under US law as has been claimed.

Last edited by Ketzer on 24-May-2007 at 02:59 PM.

I don't get it. If Amiga, Inc. has never been declared [insolvent|bankrupt|whatever the correct term may be], how can this insolvency clause kick in?

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@Lou

Quote:

Lou wrote: But the transfer of the contract from AIW to ITEC was never approved by the partners (Eyetech, Hyperion) hence it is illegal. So when AInc. went insolvent, they lost all rights.

Hyperion approved it by signing the bill of sale with Itec, we dont know that Eyetech approved it (but we dont know that they didnt) and if thats an issue, its an issue for both Hyperion and AI, they both violated there contract with Eyetech. AI may argue (successfully) that Hyperion was signing for the AmigaOne partners (this is a weird contract, in some ways Eyetech and Hyperion are treated as a single entity) or that the transfer of the contract is legal because Itec was part owner of AI (much like Genesi successfully did with the Thendic contract). As for the insolvency issue, US bankruptcy laws will not allow article 2.07 to work, back in 2003 there were long threads on this between Ben and a bunch of US citizens over on Moobunny. If that worked, I'd sell everything to my wife (or my brother) today and declare bankruptcy tomorrow. I'd owe nothing by Tuesday and I'd still have my house, cars, etc. If AI is declared insolvent by a court (or were forced to declare insolvency) Bolten and Matt actually get money first, and may actually get some ownership into the trademarks or money from the sale of those.
-Tig

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@kudlaty

Quote:

kudlaty wrote: I don't get it. If Amiga, Inc. has never been declared [insolvent|bankrupt|whatever the correct term may be], how can this insolvency clause kick in?

Well if Hyperion can show enough of an appearance that Amiga Washington was trying to hide the fact that they were real-world insolvent, it may be enough, its unclear. I think only a lawyer can tell us what the requirement there would be.

They also specifically question Pentti's transfer of things from Amiga Washinton to Itec. Something I'm not sure Amiga Delaware will want fleshed out too much if Hyperion are right.

Last edited by fairlanefastback on 24-May-2007 at 03:44 PM.
Last edited by fairlanefastback on 24-May-2007 at 03:42 PM.

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@kudlaty

Bankrupcy has to be declared.
Insolvency is a condition.

Short rough example:
Insolvency:
You look in your wallet and find it empty.
Bankrupcy:
Another one looks into your wallet, too, and finds it also empty. He tells everyone, that you have no money and no one should do anymore business with you.

So, if this clause about insolvency OR bankrupcy is "legal" in USA, it activates itself automaticaly.

Last edited by Sneaky on 24-May-2007 at 03:43 PM.

@Tigger

Quote:

If AI is declared insolvent by a court (or were forced to declare insolvency) Bolten and Matt actually get money first, and may actually get some ownership into the trademarks or money from the sale of those.

I'm not sure if many of us would have a problem with running BoltenOS on SAM.

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The other issue is that in Belgium: insolvency = bankruptcy.
Hyperion doesn't care if AIW was insolvent or bankrupt because AIW can't pay their bills and so all rights defer to Hyperion per the contract.

Now the question is - does any European law apply in this case and if so, does the case need to be moved to an international court if such a thing exists...which probably does.

Quote:

Your arguements are degraded by your lack of respect towards the parties involved, and your petty name-calling. By continually talking about the parties involved in this manner you are degrading any point you may be trying to make.

First of all the cult of personality that has risen about the Friedens is pretty silly. These are a couple of guys who were known for writing bad ports of open source games until the Sheeplord decided to give Hyperion the job for OS4. Rogue and his brothers great disdain for the Amiga community has been shown dozens if not hundreds of times on this board, and people still lap it up. I dont think you should hire to port your OS (in 4 months no less) a couple of guys who went back to college to learn how to do it, thats going to impact the schedule in my professional opinion. When people told them there "new" ideas werent going to work, they were told they were foolish, didnt understand the amiga, etc. Yet a year later when they abandoned there idea and went with one of the original suggestions nary a peep was heard.
-Tig

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@Tigger

Quote:

These are a couple of guys who were known for writing bad ports of open source games

I wasn't around then, not all of us were. References please?

Quote:

until the Sheeplord decided to give Hyperion the job for OS4

Who is the new bit of venom, the title of "Sheeplord" for, Bill or Fleecy? I'm assuming Fleecy as fleece comes from Sheep?

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@kudlaty

Quote:

I don't get it. If Amiga, Inc. has never been declared [insolvent|bankrupt|whatever the correct term may be], how can this insolvency clause kick in?

Hyperion claims that because Bill McEwen testified in court that Amiga Inc. was insolvent, the clause was activated.

I'm guessing that Amiga Inc will claim that it's company was never legally declared bankrupt/insolvent so the clause is not an issue. Also US and EU law seem to differ on the definition of insolvency in conjuction with bankruptcy. So making claims based on Bill's 'insolvent' statements may or may not play in Hyperion's favor.

In the end, this is going to be decided by a judge with way more exprience in dealing with such documents and people than any of us can imagine. I'm sure he's probably seen enough people trying to "pull a fast one", and won't be in the mood to mess around with any one trying to be less than honest about the facts. I agree with Kgrach when he talks about the judge. Much may come down to who presents the better case while not ticking off the judge. Each side seems to have left many holes in the documents which the judge will have to decide how they should best be filled. In who's favor shall he decide to fill them?

The more I read the more I think this is going to come down some where closer to the middle than on one side or the other. But what do I know...

Plaz

But it goes like this:

AIW: Hey, we are insolvent so we "transferred" everything to ITEC...
HVOF: Hey you never told us you were insolvent, we just saw them paying your bills but you still didn't pay in full anyway and we never approved the transfer of our 3-way contract to them anyway...so now we own it. Que sera sera.

@Sneaky

Quote:

Insolvency is a condition. Short rough example: Insolvency: You look in your wallet and find it empty.

Not exactly.

Many people look at their wallets (or their bank accounts --- this is the 21st century, after all) at the end of a pay cycle and find them empty. Many of those people have outstanding debts, and quite a few even have debts which are due.

Yet most of those people are not insolvent --- for insolvency is the state when your assets are insufficient to cover your debt. And most people have assets other than cash in the bank. They own a car, clothing, maybe a house, maybe jewellery, or maybe a trade.

Similarly, even if McBill had testified that AI had all of $100 in cash in March 2003 (rather than April, as he actually did), and debts of $2.2m. there would still be no reason to consider them insolvent. After all, in March 2003, AI(W) owned (or so the story goes) three key assets: (a) AmigaOS up to 3.9, (b) the Amiga trademarks, and (c) a buyback option at the low, low price of $25,000 for AmigaOS 4.0. Given that they allegedly paid 4.5 million bucks for (a) and (b) alone, and that (c) was apparently going to net them several hundred thousand Euros worth of development for a quarter of a hundred thousand dollars, it is quite reasonable to suggest that the assets were well in excess of the liabilities.
In other words, even if McBill had made the very same deposition in March, he would simply have been wrong about Amiga not being solvent. Amiga had a cashflow problem, a liquidity issue --- which could be overcome by liquidating and/or offsetting against their debts of the assets.
Which, strangely enough, is EXACTLY what happened --- they first sold (a) and (c), and later (b) and whatever other IP of value they had actually managed to create. They may not have realised quite the return they were hoping for, or AI(W) after the sales might simply have decided to shaft some of their creditors --- but up to the moment of sale, they had assets which could reasonably be considered to exceed the liabilities.

And before you shout "legal mumbo-jumbo" --- any other definition would leave 95+% of house buyers immediately insolvent, because most of them have huge debts, and no money. Same for anyone who went through university on student loans.