Free ERRATA - District Court of Arizona - Arizona

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Gary L. Birnbaum (#004386) [email protected] Charles S. Price (#006197) [email protected] Timothy J. Thomason (#009869) [email protected] Scot L. Claus (#14999) [email protected] MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100 Attorneys for Defendant Snell & Wilmer, LLP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, CASE NO. CIV 02 2405 PHX HRH ERRATA AND NOTICE OF LODGING INADVERTENTLY OMITTED WITNESS SUMMARY (Assigned to the Honorable H. Russel Holland)

13 v. 14 PETER THIMMESCH, et al., 15 Defendants. 16 17

Defendant Snell & Wilmer, LLP, by and through undersigned counsel, hereby gives 18 notice that it inadvertently omitted a witness summary for Mark Cardwell from the version of 19 its Witness List included in the Joint Pretrial Statement filed by the parties. Mr. Cardwell is 20 already listed by Plaintiff, but the summary of testimony expected to be adduced by Snell & 21 Wilmer if called in their case is attached hereto as Exhibit A. 22 23 24 25 26 -1U:\ATTORNEYS\TJT\Snell & Wilmer adv. Visitalk\Pleadings\(1-22-08 EFILED CML)Snell Errata & Notice 7 Lodging Witness Case 2:02-cv-02405-HRH Document 433 Filed 01/22/2008 Page 1 of of Summary\Errata and Notice of Lodging Witness Summary(efiled 1-22-08 cml).docWitness Summary

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RESPECTFULLY SUBMITTED this 22nd day of January, 2008. MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. By: s/ Scot Claus Gary L. Birnbaum Timothy J. Thomason Charles S. Price Scot L. Claus Attorneys for Defendant Snell & Wilmer, LLP

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CERTIFICATE OF SERVICE Biltmore Associates v. Peter Thimmesch, et al. (Case No. CV 02-2405-PHX-HRH) I hereby certify that on January 22, 2008, a copy of the foregoing will be sent via FedEx Judge H. Russel Holland UNITED STATES DISTRICT COURT 222 West 7th Avenue No. 54 Anchorage, AK 99513 907-677-6251 I hereby certify that on January 22, 2008, I electronically transmitted the attached document(s) to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: I hereby certify that on January 22, 2008, I caused the attached document to be served by first class mail on the following, who are not registered participants of the CM/ECF System: Peter Thimmesch 11329 Stonehouse Place Potomac Falls, Virginia 20165-5123 Defendant Pro Se

By: s/ Cheryl Lostracco 16 17 18 19 20 21 22 23 24 25 26 -3U:\ATTORNEYS\TJT\Snell & Wilmer adv. Visitalk\Pleadings\(1-22-08 EFILED CML)Snell Errata & Notice 7 Lodging Witness Case 2:02-cv-02405-HRH Document 433 Filed 01/22/2008 Page 3 of of Summary\Errata and Notice of Lodging Witness Summary(efiled 1-22-08 cml).docWitness Summary

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EXHIBIT A
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1.

Mark Cardwell Mr. Cardwell was a member of the Board of Directors of Visitalk from

September 18, 1998 until February 1, 2000. Mr. Cardwell will testify that he has a bachelor's degree in Economics and Math, and also holds an MBA. Mr. Cardwell will testify that, prior to joining Visitalk, he worked for a software development company called Financial Dynamics. Mr. Cardwell will testify that he was married to Margaret Mahoney in September 1998, who was a partner at the law firm of Bryan Cave at that time. Mr. Cardwell will testify that he is absolutely certain about the date he became a shareholder, employee, and director of Visitalk, because he did extensive independent research regarding that issue, including reviewing Visitalk press-releases as well as payroll documents. As the result of this extensive research, Mr. Cardwell is certain that he did not become involved with Visitalk, in any way, until at least September 15, 1998. Mr. Cardwell will testify that he insisted both to the Board and to lawyers at Snell & Wilmer that he did not become involved with Visitalk until September 15, 1998, and that he insisted that the release of claims he signed in December 1999 correctly commemorate his lack of involvement in Visitalk until after the Founders Warrants were authorized for issuance to Messers. Thimmesch and O'Donnell. Mr. Cardwell will testify that the share certificate, shareholders log, and other documents prepared by Bryan Cave that suggest he became an officer or shareholder of Visitalk any time prior to September 15, 1998 are "wrong." Mr. Cardwell will testify that he discussed the issue of fiduciary duties with lawyers at Snell & Wilmer on several occasions, and specifically in connection with the Founders Warrants issue.

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Mr. Cardwell will also testify that Snell & Wilmer advised the Board regarding possible claims held against the company in connection with the Founders Warrants, the duties owed by the company to its investors, and that Snell & Wilmer expressed concern, on numerous occasions, regarding an appropriate resolution of these issues. Mr. Cardwell will testify that while at Visitalk, he never had concerns about Visitalk's lack of financial viability, the viability of its technology, or its viability as a commercial venture. He certainly never concluded that Visitalk was insolvent while he was at the company. Indeed, Mr. Cardwell was so confident in the promise of Visitalk's technology that, even after he was terminated by Visitalk, he personally invested in an "angel group" of investors in late-2000 in an attempt to keep alive the "promise" of Visitalk's technology, products, and services. Mr. Cardwell will testify that he only discussed the Founders Warrants with one investor, Robert Mroz, and will rebut Rick Rothwell's testimony regarding purported conversations between himself and Mr. Cardwell regarding the Founders Warrants. Mr. Cardwell will testify that he never dissented during a Board Meeting regarding the resolution agreed to by the Board; and he will further testimony that he did not voice any concern or dissent to any lawyer at Snell & Wilmer regarding the Board's decision. Mr. Cardwell will testify that he does not recall ever having a "one on one" conversation with Richard Mallery, and certainly Mr. Mallery did not have a close, personal relationship with Mr. Cardwell such that he would be considered an "insider." Mr. Cardwell will testify that he had numerous disputes with Messers. Thimmesch and O'Donnell during his tenure at the company; that he threatened suit against Visitalk when he was terminated; that the claims he made against Visitalk were not frivolous and were hotly disputed; that the resolution of those claims was certainly -6U:\ATTORNEYS\TJT\Snell & Wilmer adv. Visitalk\Pleadings\(1-22-08 EFILED CML)Snell Errata & Notice 7 Lodging Witness Case 2:02-cv-02405-HRH Document 433 Filed 01/22/2008 Page 6 of of Summary\Errata and Notice of Lodging Witness Summary(efiled 1-22-08 cml).docWitness Summary

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in the best interest of Visitalk; that it was he who recommended the stock transaction as a method of settling the dispute; that the method of settling the dispute was clearly beneficial to Visitalk; and that he does not recall Mike Donahey making any statements or engaging in any settlement discussions. Rather, he remembers Stephen Stodghill representing the interests of Visitalk in connection with such negotiation.

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