@Sneaky

i think his point is that they might have been insolvent, however this is difficult(if not impossible) to prove in a court of law without it going to a bankruptcy hearing.

edits:typos

Last edited by jkirk on 25-May-2007 at 12:07 PM.
Last edited by jkirk on 25-May-2007 at 12:04 PM.
Last edited by jkirk on 25-May-2007 at 12:01 PM.

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@Plaz

The Injunctive motion also test if the Amiga trademarks may have been abandoned by not using them with new products over the last 5+ years.

(Posting this with Ibrowse. Finally got it to Log me in by using default prefs.)

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

I work for one of the major banks here in Greece and went to the department of our lawyers and I explained them the situation. They were kind enough to give some answers althought without having the facts of the case in their hand.

1) They told me that EU and US economical laws have major differences. Differerences also occur between EU’s members econimcal laws of GB, Germany, Italy etc.

2) Insolvency often and in general is hard to be proven. Hyperion must have sued AInc 4 years back in order to prove immediately insolvency. Now it’s very difficult.

3) Declairing a Private company Βankruptcy, when the shareholders have assets, and finanial back up, is pure suicide.

4) When Hyperion made a new deal with the new AInc they have accepted them as the legal successor of the old AInc.

6) There is something seriously wrong with Ainc΄s selling and merging companies that truely belong to the same shareholder.

7) Bottom line, Ainc has the upper hand but still Hyperion has enough chances.

They told me many-many other things which I have to admit I didn´t understand a bit!
The above do not reflect any of my opinions. Also these are just a summary of what they have told me and certainly not detailed.

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@edponpon

Quote:

edponpon wrote: Hey all, Again, I'm still amazed at the passion you all are putting into this. I have a question that I either missed somewhere or no one seemed to ask yet. How can Amiga Inc claim that they are not affiliated or linked in any way to the Amiga of the past, to include their debts, and still claim that they are they rightful owners of Amiga OS? Doesn't that seem kind of contradictory to you? You can't pick and choose what you want to keep and discard in business. You can't say, - I own the OS, but we're not responsible for the past debts to make it happen, it's just ours.

An interesting question will be did ITEC pay Amiga Washington something tangible for the rights. I.E. something in a range where a company in debt would honestly seek to make the sale to try to cover such debts. And if so, what happened to that money?

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Amiga 1200

@fairlanefastback

Afaik Itec was first secured creditor of Amiga, eg Amiga owed Itec money, yet had none. Instead they transferred IP worth "something". How much exactly they "paid" is irrelevant, at least to this case. Any money paid would have gone straight back to Itec anyway.

Re a new company taking over the debts of the old:-

I worked for a company that went under. In the months leading up to the crash we had a "cash crisis" which meant that some of my suppliers didn't get paid. The company didn't go out of business (we all kept on working normally), we were sold to a new company that took over all our existing contracts and business continued as usual.

However, when I went to the new accountant and asked for my suppliers to be paid, he said "No, we only bought the assets, not the liabilities. So the old debts will remain unpaid until the (old) company is liquidated, then the creditors will get their share."

So it must be possible and legal to buy only part of a failing company, in Australia, anyway.

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cheers
tony

Hyperion Support Forum: http://forum.hyperion-entertainment.biz/index.php

@tonyw

Its as simple as that. Once youre bankrupt, you got more liabilities than assets. Assets are sold to satify the liabilities as much as possible. The "weakest" creditors luck out, thats why there is the concept of "secured creditors", they get paid first.

@Ketzer

Quote:

faik Itec was first secured creditor of Amiga, eg Amiga owed Itec money, yet had none. Instead they transferred IP worth "something". How much exactly they "paid" is irrelevant, at least to this case. Any money paid would have gone straight back to Itec anyway.

Clause 4.06 of the Agreement states that Amiga INC has not given any one the rights to the IP and software (OS 3.1 - 3.9) as security for debts as at time contract is signed.

also Clause 4.04 makes them give notice to Hyperion if that condition changes.

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

@Spectre660

Explicit security for debt is something completely different, at least in germany. Say, mortgaging your house would be that kind. AmigaOS & the contract itself wasnt a specific security, but it was an asset that could be sold to satisfy debt.

Ofcourse, I dont know how exactly that transfer was done, but its entirely possible in a legal way.

@Ketzer

I think how much they paid is relevant. If the insolvency clause is considered by the judge, this amount paid for the IP would represent their assets. Did it exceed their liabilities?

Kirka

@Ketzer

The transfer of the Contract rights will be a problem. if everyone is now going by the clauses in a rigid way then we need Eyetech's consent to the transfer for it to be correct.
lot more documents need to be shown.

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

@Spectre660

Btw, can anyone point me to the part where it says that Eyetech (or Hyperion for that matter) need to give their consent for the contract to be able to be transferred?

@Ketzer

Quote:

Ketzer wrote: @Spectre660 Explicit security for debt is something completely different, at least in germany. Say, mortgaging your house would be that kind. AmigaOS & the contract itself wasnt a specific security, but it was an asset that could be sold to satisfy debt. Ofcourse, I dont know how exactly that transfer was done, but its entirely possible in a legal way.

You're exactly right Ketzer, Hyperion or Eyetech may have similar financiers (or bank loans for that matter) on the company itself.
-Tig

Last edited by Tigger on 25-May-2007 at 02:17 PM.

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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.

@Sneaky

Quote:

Sneaky wrote: @jkirk Quote: From the link jkirk posted: Both insolvency and bankruptcy deal with liabilities exceeding assets, but insolvency is a state of being and bankruptcy is a matter of law. Well that's what I said in the first place. What are you argueing about, tigger!

To prove insolvency you have to take someone to court. In fact I and others pushed very hard for Bolten, Matt and any third creditor (the US law if there are lots of creditors requires at least 3 of them to file) to file for an insolvency hearing against AI, which would have required them to come up with money or likely fold the company and the assets be handled in Bankruptcy. In likelyhood, Kouri would have wrote checks and at least those 3 would have been paid. Thats the issue, since AI is a privately held company, Kouri just can pay the external debts and say it was a accounting error. No harm, no foul, but in this case, Bolten and Matt would have gotten paid. Hyperion wasnt owed money by AI so they couldnt have even filed for such a hearing.
-Tig

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@kirka

Quote:

kirka wrote: @Ketzer I think how much they paid is relevant. If the insolvency clause is considered by the judge, this amount paid for the IP would represent their assets. Did it exceed their liabilities? Kirka

Amino paid 4.5 million for the Amiga properties (trademarks, IP, etc). There external liabilities (and understand the money owed to Bill, Fleecy, etc are not counted on that) was way less then that, maybe 150K. Is the code, trademarks, etc worth 150K, yeah, I think so, in fact I'm willing to bet Mr Buck would have paid more then 150K for them at that time. So there assets exceeded there liabilities.
-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.

Quote:

Plaz wrote: BTW, here's a thought I had before heading to bed last night. What if Mr. Peck had called for a bankruptcy hearing back when he was sueing for his wages? I don't know if it was within his power to do that, but it may have changed the Amigaland we know today.

We tried to get him to do it, depending on the number of creditors he may have needed two others to do it, but it would have either changed everything when related to the amiga or would have gotten him paid. Either way I think he would have been better off.
-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.

@Spectre660

Quote:

The Injunctive motion also test if the Amiga trademarks may have been abandoned

Thanks, that makes sense.

Plaz

Last edited by Plaz on 25-May-2007 at 02:53 PM.

@Tigger

Quote:

We tried to get him to do it, depending on the number of creditors he may have needed two others to do it

Knowing what we know today, I wished he had. But hindsight is always a wonderful thing. I probably would have been more pro Amiga Inc back then though, seeing that ignorance is bliss.

Plaz

@Plaz

Quote:

But hindsight is always a wonderful thing. I probably would have been more pro Amiga Inc back then though, seeing that ignorance is bliss. Plaz

Some people actually had foresight and tried to tell us but... Even hindsight is not so clear when the truth is so obfuscated and subject to revision. I don't envy the judge in this case. How people on both sides call see this as open and shut is beyond me, but then most on this board have greater insight than me.

Just looked up insolvency on wikipedia, some quotes from it:

Quote:

The term insolvency is often incorrectly used as a synonym for bankruptcy, which is a distinct concept, except in Germany.

Quote:

In the United States, under the Uniform Commercial Code, a person is considered "insolvent" when the party has ceased to pay its debts in the ordinary course of business, or cannot pay its debts as they become due, or is insolvent within the meaning of the Bankruptcy Code. This is important because certain rights under the code may be invoked as against an insolvent party which are otherwise unavailable.