@COBRA

Quote:

COBRA wrote: 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.

but the point being made is how do you prove it. sure his admission is pretty damming but the court requires PROOF not a statement by the president of a company that might not be aware of all things going on (not saying this is the case just that the judge will look at it from this viewpoint).

it goes without saying they are insolvent now but proving they were when hyperion signed the agreement to sell to itec?

Last edited by jkirk on 25-May-2007 at 03:44 PM.

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@COBRA

Right, but the question still remains: does one need to be proved insolvent at the time one's flat broke by something like a judgement, or can one subpoena someone else's accouting books and say "see, between 2001 and 2003 this guy owed people money, and if you look here they had no way to pay it, so at the time he was insolvent". If it's the first one, then that's a pretty big hole in Hyperion's claim of ownership for OS4, because at the time no one was asking any judges to look at their accounting books.

@stew

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Now the people have switched sides. Very entertaining and amusing

Quote:

Now that I think about it, people have switched on alot of issues

That's called "using your brain when new evidence comes to light". Are you suggesting people just make up their minds and "stay the course" regardless of new evidence? Recent history shows that's not exactly a smart thing to do.

@COBRA

Quote:

COBRA wrote: 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.

In answer to Sneaky's question, thats why I said it was the same 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.

[/quote]

I believe the judge will find that 2.07 only deals with the insolvency under the bankruptcy code, since bankruptcy is mentioned with it in the same sentence, that would be a normal interpretation. Given that, AI cannot be found insolvent, because they werent taken to a bankruptcy court and found to be insolvent.
-Tig

Last edited by Tigger on 25-May-2007 at 03:59 PM.
Last edited by Tigger on 25-May-2007 at 03:59 PM.

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@jkirk

Quote:

(not saying this is the case just that the judge will look at it from this viewpoint).

We don't know that, not by a longshot.

Quote:

not a statement by the president of a company that might not be aware of all things going on

Why because you think the judge will jump to the conclusion that Amiga is a huge company where the president would be uninformed on such matters?

Quote:

it goes without saying they are insolvent now but proving they were when hyperion signed the agreement to sell to itec?

How about a motion for discovery for their financial records, which will additionally make it clear how the same players are seemingly magically involved with both the old and new companies?

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Amiga 1200

@CodeSmith

Quote:

CodeSmith wrote: @COBRA Right, but the question still remains: does one need to be proved insolvent at the time one's flat broke by something like a judgement, or can one subpoena someone else's accouting books and say "see, between 2001 and 2003 this guy owed people money, and if you look here they had no way to pay it, so at the time he was insolvent". If it's the first one, then that's a pretty big hole in Hyperion's claim of ownership for OS4, because at the time no one was asking any judges to look at their accounting books.

This is a huge point and well put. Its a question for a lawyer. Any lawyers here?

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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Tigger

Quote:

I believe the judge will find that 2.07 only deals with the insolvency under the bankruptcy code

You mean the legal term insolvency can mean different things? From what I have read up so far I got the impression that bankrupcy is what has to be declared by a bankrupcy court, and insolvency is a state which takes place before a bankrupcy, thus it is not required that a company is declared bankrupt, to declare that they were insolvent. So as others pointed out, all that is required is sufficient evidence to prove that AInc were insolvent. Is it possible for Hyperion to request during the lawsuit documents from Amiga Inc. as further evidence showing their financial situation at the time? Like bank account balances at different points in time, etc.?

Last edited by COBRA on 25-May-2007 at 04:20 PM.

@Ketzer

clause 7.12 of The Agreement

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@fairlanefastback


Quote:

fairlanefastback wrote: @jkirk (not saying this is the case just that the judge will look at it from this viewpoint). We don't know that, not by a longshot. not a statement by the president of a company that might not be aware of all things going on Why because you think the judge will jump to the conclusion that Amiga is a huge company where the president would be uninformed on such matters?

you took these out of context. first off no conclusions will be made up front. if a judge assumes that the president is aware of everything then that must apply to large corporations as well. since that is not always the case judges tend to expect more proof and less heresay.

Quote:

How about a motion for discovery for their financial records, which will additionally make it clear how the same players are seemingly magically involved with both the old and new companies?

if this is allowable in the context of this case. sure go right ahead. but if it is not or the documents were destroyed or misplaced, forget it.
sorry but without direct proof a judge will not rule against the ip holder unless hyperion is able to present one heck of a case using circumstancial evidence (in which the ainc statement can go).

Last edited by jkirk on 25-May-2007 at 04:31 PM.
Last edited by jkirk on 25-May-2007 at 04:30 PM.

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@COBRA

Quote:

COBRA wrote: @Tigger Quote: I believe the judge will find that 2.07 only deals with the insolvency under the bankruptcy code You mean the legal term insolvency can mean different things? From what I have read up so far I got the impression that bankrupcy is what has to be declared by a bankrupcy court, and insolvency is a state which takes place before a bankrupcy, thus it is not required that a company is declared bankrupt, to declare that they were insolvent. So as others pointed out, all that is required is sufficient evidence to prove that AInc were insolvent. Is it possible for Hyperion to request during the lawsuit documents from Amiga Inc. as further evidence showing their financial situation at the time? Like bank account balances at different points in time, etc.?

this falls back to interpretation. this is the question the judge must ask.

does 2.07 mean in the event of a bankrupcy or in the event of insolvency?
or does it merely state in the event of bankrupcy aka insolvency?

when the judge makes this determination then we will know the answer. until then we don't. tigger is merely stating the direction most likely to be taken is the second statement.

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@jkirk

It says: "In the event Amiga files for bankrupcy or becomes insolvent ..."

'or' means if either of those conditions is met, how could it be interpreted any other way?

@COBRA

like i said that is for the judge to decide. and yes it can be interpreted differently.
examples above.^


just to clairify my post above describes two possible interpretations of that clause. that is all. aka i know it is not exact wording.

Last edited by jkirk on 25-May-2007 at 05:03 PM.
Last edited by jkirk on 25-May-2007 at 04:57 PM.

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@COBRA

Good point.
Amiga Inc have exposed themselves to many legal issues with this law suit.
I think that it will be proven to be a big mistake on their part.
Hyperion's lawyers are even strategically dragging the Individuals into it.(McEwan and Kouri ).

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@Rob

Quote:

If a third party offered to sell Coca Cola's I.P. to Pepsi they'd be in the sh!t.

Haha this just happened, and the lady got 8 years for it.

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@jkirk

A lot of things can be interpreted in different ways, but this just happens to be a really simple sentence that's not one of those. There's a difference between interpreting something in different ways, and taking something completely out of context.

@COBRA

Quote:

COBRA wrote: @jkirk A lot of things can be interpreted in different ways, but this just happens to be a really simple sentence that's not one of those. There's a difference between interpreting something in different ways, and taking something completely out of context.

what you have to remember is the legal system language is it's own seperate language. while i can read that sentence and know the meaning just as well as you can. the legal system cannot handle such an ambiguous sentence. if you want to include both situations then put them in seperate sentences. this will avoid this confusion as to the meaning of this sentence. this is the main problem with this contract it seems to be written in common language and not in legal language.

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@Tigger

Slighly OT post on statements made on this tread by Tigger

You claim that you could of done a better and faster Job on OS4.
But your claimed previous Amiga coding experience shows that to be untrue.
Your software had incorrect or poorly written installation scripts.
Never followed Amiga programming rules or style guidelines. Broke almost every programing rule by replacing system binaries instead of running your own custom ones if really needed. Who’s program was responsible for many Amiga Systems to failure to boot. Not exactly the guy I want coding an Amiga OS.

The statement really borders on incredibility once you factor in that the OS4 development team is made up of many more coders than just the Friedens. Yet you claim all by yourself you could do it faster and better.

Okay show us how good you are write a single USB driver for OS4.
That should be child’s play for a coder who claims to be able to write a complete OS with TCP/IP stack, and USB stack in short order.

You also claim that the Freidens only did a few bad ports of public domain source code.
You seemed to have conveniently forgotten their commercial Licensed ports for the Amiga. Shogo MAD, Heretic II, Freespace.

Also again you seem to have conveniently forgotten all of the statements made by Fleecy, Gary and Bill over the last few years that supports Hyperions statements.

Kgrach

@all

We can argue about this forever and will make no difference to the outcome of the court case even though it is really fun to speculate.

The real question everyone should be asking “what is AI’s end game”
Why the sudden interest in AOS4?
Why bring the OS coding in house when you have no OS staff ?
Why buy the Indian coding house if they don’t do OS stuff.
Why buy it at all?,What are they currently doing?
Why waste money on a stadium name, especially a controversial stadium?
Why choose ACK to make a low end board when there are plenty of working low end PPC board options currently available?
Why choose ACK at all there are plenty of experienced PPC board houses that can design or have high end designs out now?
Why reinvent the wheel and start from scratch with an unproven developer? I am not slamming Adam but there is no track record of him ever developing a PPC board.
Why all the activity now?
Why the sudden cash flow?

kgrach

@kgrach

Quote:

Why the sudden interest in AOS4?

Sudden? The interest is there at least since April 2003 (attempted buyback).

Quote:

Why bring the OS coding in house when you have no OS staff ?

Neither had Hyperion as were told. Subcontractors.

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Why buy the Indian coding house if they don’t do OS stuff.

Because Amiga do different things too.

@Tigger

Thanks for the information. Just trying to follow along.

How was this paid? In U.S. currency? Any links.

If there there is an actual transfer of 4.5 million, that would rule out one definition of insolvency.

Kirka