Free Stipulation - District Court of Arizona - Arizona

EXHIBIT "1"
Form of Judgment
Case 2:O2—cv-O2405—HRH Document 262-2 Filed O9/23/2005 Page 1 of 4

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4 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICTOF ARIZONA
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6 In re:
7 BILTMORE ASSOCIATES, L.L.C., as Case N0. 02-2405-PHX (HRH)
Trustee for the Visitalk Creditors’ Trust,
8 Piamurr,
9 vs. JUDGMENT
10 PETER THIMMESCH and CYNTHIA
ll THIMMESCH, husband and wife;
MICHAEL O’DONNELL and MARSHA
12 O’DONNEL, husband and wife; MICHAEL
CARDWELL and MARGARET
13 MAHONEY, husband and wife; RAY
14 GASTON and JANE DOE GASTON,
husband and wife; STEPHEN BEST and
15 JANE DOE BEST; husband and wife;
16 STEPHEN A. BEST, P.C.; JEFFREY
HIRSCHBERG and JANE DOE
17 HIRSCHBERG, husband and wife; ALAN
KAPLAN and JANE DOE KAPLAN,
18 husband and wife; MICHAEL COONEY and
19 JANE DOE COONEY, husband and wife;
ROBERT CORRY and JANE DOE CORRY,
20 husband and wife; GILES SOMERVILLE
21 and JANE DOE SOMERVILLE, husband
and wife; ERNST & YOUNG, LLP, a limited
22 liability partnership; SNELL & WILMER,
LLP, a limited liability partnership;
23 MP3.COM, INC., ("MP3"), is a foreign
24 corporation; BLACK CORPORATIONS l-
10; and JOHN DOES l-20,
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Defendants.
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weasm
1074493
Case 2:O2—cv-O2405—HRH Document 262-2 Filed O9/23/2005 Page 2 of 4

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2 VVHEREAS, Plaintiff Biltmore Associates, L.L.C., is the Court appointed Trustee for
3 the Visitalk Creditors’ Trust and the successor in interest to the claims and causes of action set
A; forth in the Amended Complaint filed in this action; and
6 WHEREAS, Defendant Mark Cardwell is a former vice-president and director of
7 visita1k.com, and at all material times was a resident of the State of Arizona; and
8 WHEREAS, Plaintiff filed the Amended Complaint in this matter against Cardwell and
1; others involved in the operation and management of visitalk.com; and
11 WHEREAS, Cardwell consents to the entry of a judgment against him and his sole and
12 separate property on Counts 3, 5 (Subparagraphs l4l(c), (d) and (t)), 11 and 12 of the
13 Amended Complaint; and
; WHEREAS, visitalk.com suffered actual damages in an amount of not less than
16 $25,()00,000.00 as a direct and foreseeable result of the actions described in Counts 3, 5
17 (Subparagraphs l4l(c), (d) and (1)), ,11 and 12 of the Amended Complaint; and
18 WHEREAS, Plaintiff and Cardwell agree that settlement of this matter is in the best
;; interests of the parties and the public, and that entry of this Stipulated Judgment, without
21 additional litigation, is the most appropriate means of resolving this action against Cardwell;
22 and
23 WHEREAS, the parties or representatives thereof certify that he is fully authorized to
24 enter into the terms and conditions of this Stipulated Judgment and to legally bind the parties to
ig it; and
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msssm
Case 2:O2—cv-O2405—HRH Document 262-2 Filed O9/23/2005 Page 3 of 4

1 WHEREAS, without trial or further adjudication of any issue of fact or law, upon
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3 consent of the parties, and upon consideration of the mutual promises herein contained,
4 NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that this
5 Court has jurisdiction over the parties and the subject matter of this action pursuant to 28
6 U.S.C. §§ 157 and 1334.
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8 IT IS HEREBY FURTHER ORDERED entering judgment in favor of Plaintiff and
9 against Cardwell in the amount of Twenty-Five Million Dollars ($25,000,000.00).
10 IT IS HEREBY FURTHER ORDERED that, Plaintiff’s other claims against Cardwell
ll are dismissed with prejudice, each party to bear its own fees and costs.
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13 DATED this day of , 2005.
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16 JUDGE, UNITED STATES DISTRICT COURT
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1763573.1
1074493
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Case 2:02-cv-02405-HRH

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