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O'Connell v. OpticTrek.com

September 13, 2006

JERRY O'CONNELL, TIMOTHY O'CONNELL, JAMES DONEGAN, AND ANB ASSOCIATES, PLAINTIFFS,
v.
OPTICTREK.COM, INC., GEORGE A. ABBOTT, DAVID A. ENTREKIN, PATRICK BECKHAM AND JACQUES HORN, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

Presently before the Court are two motions to dismiss this action with prejudice: one motion by defendant Jacques Horn (Dkt. No. 48), and one by defendants George A. Abbott and David Entrekin (Dkt. No. 49).

BACKGROUND

The Court assumes that the reader is familiar with the facts and procedural history of the case, which are set forth in the September 15, 2005 Memorandum-Decision and Order (Dkt. No. 44). In that decision, the Court denied plaintiffs' motion for entry of judgment upon Confessions of Judgment executed by defendants George A. Abbott, David Entrekin and Jacques Horn in conjunction with a Settlement Agreement settling this action.

The Settlement Agreement provides:

1. Each of the defendants shall immediately execute a Confession of Judgment to the plaintiffs in the amount of $310,050.00; and

2. Counsel for the plaintiffs shall hold said Confessions of Judgment in escrow pursuant to the terms of this Agreement; and

3. Following the defendants' execution and delivery of this Agreement and the Confessions of Judgment to counsel for the plaintiffs, the action will be discontinued with prejudice provided, however, that the plaintiffs may continue the action as against Patrick Beckham and each or any of the defendants that do not execute this Agreement and/or the Confessions of Judgment; and

4. The defendants will pay the plaintiffs in full for the debt represented by the Confessions of Judgment immediately upon the sale of OpticTrek's technology and/or the receipt of any additional funding in OpticTrek or any successor company; and

5. The plaintiffs, upon notice to and the approval of their counsel, will be made parties to any legal action commenced by or on behalf of the defendants or OpticTrek's shareholders, employees, or vendors against Ash Gulamali, European Industries, and/or The Hanover Trust of Monte Carlo. The cost of plaintiffs' participation in any such action shall be borne by the defendants; and

6. The defendants shall immediately reimburse the plaintiffs the sum of $4,400 representing the costs and disbursements incurred to date in connection with the action; and

7. The plaintiffs may file and seek to execute upon the Confessions of Judgment referenced herein without further notice to the defendants upon a default under the terms of paragraphs 4, 5, or 6 of this Agreement.

8. The defendants shall provide counsel for the plaintiffs with all meeting minutes relating to OpticTrek or any successor company and with such other records as may reasonably be requested by the plaintiffs to monitor compliance with this Agreement. In its September 15, 2005 Memorandum-Decision and Order denying plaintiffs' motion for judgment on the Confessions of Judgment, this Court observed as follows:

[U]nder the terms of the Settlement Agreement, upon defendants' execution and delivery of the Settlement Agreement and the Confessions of Judgment, plaintiffs were obligated to discontinue the instant action with prejudice. Defendants did execute and deliver the Settlement Agreement and Confessions of Judgment, giving rise to plaintiffs' ...


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