Response ReplyCal. Super. - 6th Dist.May 12, 2017\OOOQO‘NUIAUJNH NNNNNNNNNt-IHt-tr-iv-tn-Ir-dr-dHD-d WNQMAUJNHOKOWQQM-bWNF-‘O TAU-METRIX, INC., et al., 17CV31 0071 Santa Clara - Civil TERENCE N. CHURCH (SBNO90821) Law Office of Terence N. Church 2400 Camino Ramon, Suite 176 San Ramon, CA 94583 925.302.6642 Telephone 925.332.0378 Facsimile terry@tchurchlaw.com Attorney for Defendants, TAU-METRIX, INC. and NADER PAKDAMAN ROBERT S. ROBINSON (SBN 131461) Law Office of Robert S. Robinson 2440 Camino Ramon, Suite 253 San Ramon, California 94583 925.830.2702 Telephone 925.830.2104 Facsimile rob@robrobinsonlaw.com (Associated Counsel) Associated Counsel for Defendant NADER PAKDAMAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION MAHAMEDI IP LAW LLP, ) ) Plaintiff, ) V. ) ) ) ) ) Defendants. ) ) ) ) ) ) ) TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Defendant Nader Pakdaman (“Pakdaman”) hereby submits the attached Memorandum of -1- DEFENDANTNADER PAKDAM4N ’SREPLYINSUPPORT 0FDEMURRERS A. Nakamoto Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/1 1/2020 12:56 AM Reviewed By: A. Nakamoto Case #1 7CV31 0071 Envelope: 401 1250 Case No. 17-CV-3 10071 DEFENDANT NADER PAKDAMAN’S REPLY IN SUPPORT OF DEMURRERS TO PLAINTIFF’S FOURTH AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR JUDICIAL NOTICE (E-Filed) Date Action Filed: May 12, 201 7 HEARING DATE: FEBRUARY 18, 2020 TIME: 9:00 a.m. DEPT.: 20 CASEN0. I 7-CV-310071 \OOONONUI-PUJNH NNN NNthhit-H-It-nr-h-p-p- wuoagmwwoomummbwwv-‘O Points and Authorities, and the Request for Judicial Notice, in support of his Demurrers to the e Fourth Amended Complaint (“4thAC”) of Plaintiff Mahamedi IP Law LLP. LAW OFFICES OF ROBERT S. ROBINSON Dated: February 10, 2020 By:W Robert S. Robinson Associated Counsel for Defendant, Nader Pakdaman -2- DEFENDANTNADER PAKDAMAN'S REPLY 1NSUPPORT 0FDEMURRERS CASE N0. 1 7-cV-310071 \DOOQCKUI-PUJNH NNNNNNNNNHHHHHa-AHHr-I- OOQONM-RUJNt-OKOOONONm-hWNF-‘O MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NADER PAKDAMAN’S REPLY IN SUPPORT OF DEMURRERS TO PLAINTIFF’S FOURTH AMENDED COMPLAINT 1 . INTRODUCTION Of course Plaintiffjust wants to take this baseless case past the pleading stage so that it can inflict more emotional and economic pain on Defendant Nader Pakdaman. Plaintiff wants to wear down its layman former client through repeated pleadings because it is being represented cost-free by its in-firm general counsel. But even - or especially - law firms must adhere to the norms of pleading fraud and contract claims, especially those that purportedly cover debts from 12 or more years prior. Enough is enough. Plaintiff has not explained the conflicts in its various pleadings, the deficiencies in its factual allegations (particularly as to the concealment claim), and the fallacies in its factual representations. (For example, that all the iterations of its firm were registered When its request for judicial notice shows the Opposite.). The case against Mr. Pakdaman should be dismissed. 2. PLAINTIFF’S OPPOSITION, AND ITS NEW EVIDENCE, REINFORCE THE DEFICIENCIES IN THE FIRST CAUSE OF ACTION. A. Plaintiff attempts to remedy its failure to have an operative written contract with documents that actually prove no actionable contractual relationship exists. Plaintiff changed the ownership, ownership structure (e.g., number of partners), case staffing, and hourly rates multiple times over a period of 11 years but never obtained an updated fee agreement from tau-Metrix. Its position, seeming to ignore the position oftrust it and all attorneys undertake in client relations, is that despite contractually agreeing to staffthe matters a certain way, and charge a certain rate, it can simply change them at will. It seeks to enforce the _ 1 - DEFENDANTNADER PAKDAMAN ’SREPLY1NSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-3 10071 \OOOflQtlluPUJNH NNNNNNNNNHD-twwwr-AHHHI-d OOQQM-kWNHOKOOOflQLh&WNh-‘o contractual arrangement in the matters that benefit it, but denies that it is required to abide by the contract as well. In response to the Demurrers, Plaintiff argues that the fee agreement from 2004 applied through 201 5, and through the different, dramatic changes in its firm, because “each firm name [was] registered as a continuation of the firm name that preceded it.” (Opp. at 3: 23-26.) To support its claim, the Plaintiff directs the Court to its Request for Judicial Notice, Exhibits 1 and 2. (Opp. at 4:3.) Only the documents in Plaintiff’s RJN show n0 such thing. Indeed, they show the absence of continuance of the firm. Exhibit 2, page 5, the “Limited Liability Partnership Amendment to Registration,” filed with the Secretary of State on August 15, 2005, shows a transfer from “Shemwell Gregory & Courtney LLP.” Prior to that, the firm was registered and known as Shemwell & Gregory, LLP” as shown in the prior pages of Exhibit 2. Despite this case having been filed nearly 3 years ago, and this being the fifth iteration of the complaint, Plaintiff has submitted documents showing the lack ofa continuity ofthefirms. On this basis alone, the First Cause of Action should be dismissed with prejudice. B. Plaintiff inaccurately represents its own pleading with respect to the 2010 funding Another ground for the Demurrers was that Plaintist First Cause of Action was triggered by the 2010 funding. In its Opposition, which is not under oath, Plaintiff asserts the following: “[A]s Mahamedi alleges, tau-Metrix never disclosed the fact that it had received funding . . ..” (Opp. at 4: 1 8-20.) That simply is not true. Nowhere in the First Cause of Action nor in the preceding allegations does Plaintiff assert it was unaware ofthe funding. C. Plaintiff failed to provide anv authority that it can ign_ore its written fee agreement as to staffing and hourly rates. -2- DEFENDANTNADER PAKDAMAN'SREPLY1NSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 \OOOQO‘sUI-bUJNr-I NNNN NNNNh-tt-lHr-tD-II-dr-Ah-IHH WQQMEWNHOOOOQONM¥WNWO Plaintiff’s position is that it can enforce the 2004 fee agreement but is not bound by the hourly rates it agreed to charge or the lawyers the client had approved to work on the file. Without authority, it says it would be impractical to get client approval before a lawyer unilaterally changes his or her hourly rate, or the lawyers representing the client, or other material aspects of the representation. Its only alleged authority for that proposition is Severson & Werson v. Bolinger (1991) 235 Cal.App.3d 1569, fn. 3, but unsurprisingly, that footnote simply quotes the Business and Professions Code. Further, to the extent that Severson & Werson permits changes in hourly rates, it is a 1991 case that is at odds with the State Bar’s model fee agreement. While such models are not binding on courts nor mandatory, they are telling. The model hourly fee form, under section 5, “Legal Fees and Billing Practices,” says the following: “The rates on this schedule are subject to change on 3O days written notice to Client.” The form may be found here: http://www.calbar.ca.gov/Portals/O/documents/forms/Sample Written Fee Agreement Instruction m. Further, nothing in Severson & Werson authorizes a lawyer to misrepresent to clients that an attorney is an employee of the firm when, in fact, the attorney is a contract lawyer. Yet that is what the Opposition suggests Plaintiff has done. (“Opp. at 5: 1-5.) And nothing in Severson & Werson empowers an attorney to ignore his or her contractual obligations as to the lawyers handling a matter. D. Plaintiff does not dispute that it claimed termination occurred more than 2 vears before suit was fi_le_d_. Most ofpage 5 of the Opposition is Plaintiff’s protest of the assertion, in the Demurrer, that it had withdrawn from representing tau-Metrix more than 2 years before this case was filed. But nothing in the Opposition disputes that, even as Plaintiff plead its claim, termination occurred in some aspects on April 10, 201 5. -3- DEFENDANTNADER PAKDAAMN’S REPLY1NSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 \OOOQQUI-RUJNh-t NNNN NNN-II-II-nd-tr-Iv-Iv-Ih-t-t E. Plaintiff misconstrues Martindell v. Bodrero, the pertinent part ofwhich applies to promissorv m Neither Martindell v. Bordrero (1967) 256 Ca1.App.2d 56 nor Young v. Sorensen (1975) 47 Ca1.App.3d 91 1, are applicable for the proposition asserted by Plaintiff, that a partial payment of a debt extends the statute of limitations. (Opp. at 6.) Both ofthose cases involved promissory notes and relied on California Code of Civil Procedure, which specifically provides that payment “on a promissory note” is sufficient to stop a statute of limitation from running. It does not mention other forms of agreements, nor do the cases cited by Plaintiff. 3. PLAINTIFF HAS DONE NOTHING T0 SHOW THAT ITS OPEN BOOK ACCOUNT CLAIM IS BARRED Plaintiff claims that Pakdaman’s Demurrer misquoted Armstrong Petroleum Corp. vs. Tri- Valley Oil & Gas C0. (2004) (Fifth Dist. 2004) 116 Ca1.App.4th 1375, 1395, n. 9. Not true. The quote reads in its entirety: “Under California law, however, moneys due under an express contract cannot be recovered in an action on an ‘open book account’ in the absence of a contrary agreement between the parties.” (citing Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Ca1.App.4th 1334, 1343.) While the Plaintiff might disagree with the Fifth District’s reliance on Tsemetzin, that does not mean the original quote was set forth incorrectly. Moreover, what Plaintiff clearly seeks to do is indeed use the open book account to evade the statute of limitations, which is improper. 4. SIMILARLY, PLAINTIFF’S ACCOUNT STATED CLAIM MUST FAIL For the same reasons stated in the original Demurrer, Plaintiff s Third Cause of Action should be dismissed. Plaintff does not dispute, and fails to explain, why its Second Amended Complaint, Plaintiff asserts the account stated was for $71 ,300. (SAC, 5/16/19, 1] 25.) Now, it claims the account was stated for $91 ,775.88. Assent cannot be shown when Plaintiff keeps -4- DEFENDANTNADER PAKDAAMN'SREPLY1NSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 \OOOflQUI-AUJNH NNNNNNNNNHI-HHHHo-dr-tr-Ar-d OO‘QQUI-hWNr-‘OKOOOQONUIAUJNHO changing the amount supposedly agreed upon by the Parties. This inconsistency defeats this cause of action. 5. PLAINTIFF’S CONVOLUTED FOURTH CAUSE OF ACTION FOR CONCEALMENT CANNOT BE SAVED BY ITS OPPOSITION, WHICH ITSELF IS INTERNALLY INCONSISTENT, LACKING SPECIFIC FACTS, AND IGNORES THE EXHIBITS IN ITS OWN OPERATIVE COMPLAINT. BESIDES, USPTO DOCUMENTS BELIE PLAINTIFF’S CLAIMED IGNORANCE OF THE SECURITY AGREEMENT. Despite Defendant Pakdaman’s Demurrers citing the long-held proposition that Plaintiff was required to give the specifics of the concealment as required in all fraud claims, Plaintiff failed to controvert that authority or explain where it made the requisite disclosures. (See, Morgan v. AT&T Wireless Services, Inc. (2009) 177 Ca1.App.4th 1235, 1262 [“The policy of liberal construction of pleadings alleging fraud Will not be invoked if the complaint is deficient; the plaintiff must plead facts which “‘show how, when where, to whom, and by what means the ’99,, presentations were tendered. ](citation omitted.) Instead, it asserts a conclusion that the elements ofthe claim were adequately pled. That is not accurate either. Nowhere in the 4th Amended Complaint does the Plaintiff explain the duty or the specific statements on which it relied. Nor does Plaintiff explain, for example, how it could have been harmed by an alleged representation made after z't terminated its representation 0fthe tau-Metrix. And Plaintiff does not even allege that its alleged damage for concealment is within the jurisdictional minimum of this Court. (See 4thAC, 1152.) One of the more damning portions of the 4thAC, especially when read in context of the Opposition, is 1] 51, where the Plaintiff alleges that “PAKDAMAN intended for MAHAMEDI to rely on his assurances so that MAHAMEDI would not take legal action against TAU-METRIX at that time.” But that is not what the 4thAC alleges. No, it alleges that, at some unknown point, -5- DEFENDANTNADER PAKDAMAN ’S REPLY1NSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 \OOOQOer-waH NNNN NNNNHr-tt-n-r-Iv-tr-It-tr-nh-t OOQQMEWNHOKOOONONM-PWNHO Mahamedi advanced new fees and costs. And if it is referencing 2015, after the secured creditor began action to foreclose on all oftau-Metrix’s assets, what difference would that have made since there would be nothing from which to recover? Trying to explain away these problems without addressing them squarely, Plaintiff says in one paragraph of its Opposition that the concealment claims have to do with “tau-Metrix’s inability to pay for services rendered.” (See 4thAC, p. 8:4-6.) In the very next paragraph, however, while asserting the artfulness of its pleading, Plaintiffnow claims the cause of action is based upon Pakdaman’s alleged concealment that “he would not or could not pay Mahamedi’s invoices.” It is fundamentally incredible to believe that the insufficient allegations, made by an experienced law firm on its 5th attempt, could formulate the foundation showing somehow it was hoodwinked as to the financial status of a cash-strapped client that owed the law firm money for years. Yet that is what Plaintiffs law firm would have this Court belief but even that position is undermined, yet again, by its own exhibits. Somehow, Plaintiff law firm claims that correspondence between its outside lawyer, and Mr. Pakdaman, led the Plaintiff to believe that everything was rosy financially and the Plaintiff would be paid soon. But that’s not what the correspondence said. In September 201 5, Mr. Pakdaman reminded Plaintiff that it could only pay when and if its financial woes reversed: We have been delayed because of commercial issues and engagements and have consequently not been able to make the payments. If and when the company has commercial traction we hope to converge on an aggressive payment that satisfies your client and meet our commitments.” Also noteworthy is the Plaintiff s apparent claim that it was unaware that the lender had a security interest and could foreclose on that. (See 4thAC, fl49.) Earlier in the 4thAC, however, Plaintiff acknowledged that tau-Metrix sought and received funding in 201 O (fl 1 7) after having fallen behind in payments to the Plaintiff some two years earlier. ((1115.) So, was there some way -6- DEFENDANTNADER PAKDAMAN’S REPLY1NSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 \DOOQONUIAUJNv-x NNNN NNNNv-‘v-‘r-IH-Hr-it-IHH WVQMEUJNF-‘OOOONONMgWNHO for the Plaintiff law firm, patent counsel for tau-Metrix, to know whether a security interest was recorded against tau-Metrix’s assets? The USPTO records answer this in the affirmative. Take, for example, US Patent No. 7220990 (Application No. 10927260) filed on August 25, 2004. Mahamedi was the counsel who filed a Notice ofAssignment 0f this patent, from the inventors to tau-Metrix, dated April 6, 2010. ((See Req. Jud. Ntc., no. 1, Public )) He remained counsel through at least April 10, 201 5, when he filed is withdrawal motion. (See RJN no. 2.) (The USPTO shows the Plaintiff firm, Mahamedi IP Law LLC, which was not formed until April 2016, still as counsel. [See RJN no. 3.] But the assignment in question, recording the Security Interest of the lender, TEL Venture Capital, Inc., was filed on September 20, 201 1, 3 years and 7 months before Mahamedi withdrew as counsel of record. [See RJN no. 3.] It strains credibility to suggest Plaintiffwas unaware of the security interest. The concealment cause of action, not asserted until March 29, 2019, is time-barred, inadequately pled, confusing, and inadequate to state or show a cause of action against Pakdaman. 6. AS TO THE FIFTH CAUSE OF ACTION, PLAINTIFF FAILED TO CONTROVERT THE OBVIOUS: OBJECTIVELY, BOTH PARTIES UNDERSTOOD A FUTURE WRITING WAS NEEDED TO EFFECT A GUARANTY. Plaintiff’s Opposition to the Demurrer is one brief paragraph devoid of any discussion of California Civil Code sections 1624 (a)(2) and 2793. Indeed, Plaintiff only “cites” an unpublished federal tn'al court decision which is ofno authoritative value in California. Further, Plaintiff did not explain how there could be a guaranty cause 0f action when the very emails it cites, both from Plaintiff and Defendant Pakdaman, state that a future writing (the “form”) will be required for the guaranty to be effective. T0 reiterate, in Exhibit D to the 4thAC, Plaintiff included and relied upon a February 24, 2011 email (4thAC Exh. D) where Plaintiff’s principal, Mahamedi, said the following regarding a guaranty: “I will provide you a form when I get back.” Mr. Pakdaman replied “Please send -7- DEFENDANTNADER PAKDAM4N ’S REPLYINSUPPORT0FDEMURRERS CASEN0. 1 7-CV-310071 OOOQONUI-PUJNr-I NNNN NNNNHHt-dr-tr-dt-tr-t-tHr-a WQQMKWNHOWWNQM-kwwb-tc form.” (Emphasis added.) Plaintiflfaz'led to controvert the factual statement, in the Demurrers, that it never asserted that it sent the form to Pakdaman. And it is telling that it does not even ask for leave to assert that it did, in fact, ever send the form. It did not. Written guaranties are important, 0f course, because they contain essential terms ofthe guarantee: what is the amount ofthe guaranty, how long does it last, must the creditor exhaust its remedies against the debtor first, what conditions are there upon the guaranty, are interest, late fees, and the like included in the amounts guaranteed, and so forth. None of those terms are included in the email. As our Supreme Court held long ago, absent an essential term, or here, numerous such terms, the contract is not enforceable. Ablett v. Clauson (1954) 43 Cal.2d 280, 284. It is perfectly appropriate, and given the Plaintiff’s machinations here, manifestly just that this court determine the lack of a guaranty as a matter of law. In Bustamante v. Intuit, Inc. (2006) 141 Ca1.App.4th 199, the Sixth District Court of Appeal affirmed a summary judgment rejecting an alleged breach of a contract to form a joint software venture in Mexico. In holding that no agreement on any essential terms was formed - despite communications much more extensive than the brief emails proffered by Plaintiff here - the Court noted the following: “Contract formation requires mutual consent, which cannot exist unless the parties ‘agree upon the same thing in the same sense.’ (CiV.Code, §§ 1580, 1550, 1565.) ‘If there is no evidence establishing a manifestation of assent to the “same thing” by both parties, then there is no mutual consent to contract and no contract formation.’ (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 81 1, 71 Cal.Rptr.2d 265.)” Bustamante, supra, at 208. Noting that the existence of a contract was an issue of law, the Court further held that “’Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties' obligations and to determine whether those -3- DEFENDANTNADER PAKDAMAN’SREPLYINSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 \OWQQUI-hUJNI-d NNNN NNNNb-‘v-‘Hb-lt-An-Ab-tn-AHH OOQQMgUJNt-IOQWQQLh-BWNHO obligations have been performed or breached.’ (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623, 2 Cal.Rptr.2d 288.) ‘To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.’ (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770, 23 Cal.Rptr.2d 810; [Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407)” 7. CONCLUSION For all the foregoing reasons, Pakdaman’ss Demurrers should be granted in their entirety, without leave t0 amend, the 4thAC dismissed with prejudice, and Judgment entered for Pakdaman. Plaintiff has not shown how it could assert a sixth version of its complaint, and what it would assert, to defeat its prior admissions. LAW OFFICES OF ROBERT S. ROBINSON Dated: February 10, 2020 By kobert S. Robinson Associated Counsel for Defendant, Nader Pakdaman -9- DEFENDANTNADER PAKDAMAN'S REPLY1NSUPPORT 0F DEMURRERS CASE No. 1 7-CV-310071 VOWQQLII¥WNH NNNNNNNNNr-IHHt-i-wwu-d-H “VOM&WNHO\OW\IO\M$WNHO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF REPLY IN SUPPORT OF DEMURRERS Defendant Nader Pakdaman respectfully requests that, pursuant to California Evidence Code sections 452 et seq., including section 452 subsections (d) and/or (h), the following documents from the United States Patent and Trademark Office: 1. The Statement Under 37 CFR§3.73 (b), dated April 6, 2010, and signed by Zurvan Mahamedi as counsel, regarding Patent Application 10/927,260. [Assigning patent from inventors to tau-Metrix.] 2. The Request for Withdrawal as Attorney or Agent and Change of Address submitted by Zurvan Mahamedi on April 10, 2015, regarding Patent Application 10/927,260. 3. The Attorney/Agent Information page from the USPTO Patent Application Information Retrieval (PAIR) website date 2/10/2020, regarding Patent Application 10/927,260. 4. The Patent Assignment cover pages (2) and Security Agreement regarding patent numbers including Patent No. 7220990 (which was applied for as Patent Application 10/927,260). The Security Agreement was dated August 9, 2010. LAW OFFICES OF ROBERT S. ROBINSON Dated: February 10, 2020 By: Robert S. Robinson Associated Counsel for Defendant, Nader Pakdaman - 1 _ DEFENDANTNADER PAKDAMAN ’S REPLYINSUPPORT 0FDEMURRERS CASE N0. 1 7-CV-310071 RJN no. 1 Atty. Docket No. SILO.P102 PATENT IN THE UNITED STATES PATENT OFFICE In Re Patent Application of First Named Inventor: Aghababazadeh, Majid Examiner: Tran, Long K. Application No.2 10/927,260 Art Unit: 28 1 8 Filed: 8/25/2004 Confirmation No.: 2635 For: TECHNIQUE FOR EVALUATING A FABRICATION 0F A DIE AND WAFER Commissioner for Patents P.O. Box 1450 Alexandria, VA 223 13-1450 Statement Under 37 CFR §3.73§ t_r) Sir: tau-Metrix, Inc., a Delaware corporation, hereby states that it is the assignee of the entire n'ght title and interest in the above-identified patent application by virtue of the following Assignment document recorded in the USPTO at Reel/Frame 016604/0787. The undersigned is authorized to act on behalfof the assignee at least for purposes ofmaking the foregoing statement. Effective immediately, please direct all further communications in the above- identified patent application to the following address: Mahamedi Paradice Kreisman LLP Telephone: (408) 236-6640 550 South Winchester Blvd. Suite 605 Facsimile: (408) 236-6641 San Jose, CA 95128 Customer No. 30554 Respectfully submitted, Mahamedi Paradice Kreisman LLP Date April 6. 2010 /Zurvan Mahamedi/ Zurvan Mahamedi, Reg. No. 42,828 RJN no. Z Doc Code: PET.POA.WDRW Document Description: Petition to withdraw attorney or agent ($883) PTO/SB/83 (04-13) Approved for use through 11/30/2014. OMB 0651-0035 U.S. Patent and Trademark Office, U.S. DEPARTMENT OF COMM ERCE Under the Paperwork Reduction Act of 1995. no Bersons are re uired to res 0nd to a collection of Information unless it dls la s a valid OMB control number. Application Number 10/927,260 REQUEST FOR WITHDRAWAL Filing Date 08-25-2004 AS ATTORNEY OR AGENT AND First Named Inventor Majid Aghababazadeh CHANGE 0F Art Unit 2818 CORRESPONDENCE ADDRESS Examiner Name Long K- Tran k Practitioner Docket Number SILO.P1 02 J To: Commissioner for Patents P.O. Box 1450 Alexandria, VA 22313-1450 Please withdraw me as attorney or agent for the above-identifled patent application, and D all the practitioners of record; D the practitioners (with registration numbers) of record listed on the attached paper(s); or the practitioners of record associated with Customer Number: 30554 NOTE: The immediately preceding box should only be marked when the practitioners were appointed using the listed Customer Number. The reason(s) for this request are those described in 37 CFR: D 11.116(a)(1) D11.116(a)(2) D 11.116(a)(3) D 11.116(b)(1) D11.116(b)(2) D 11.116(b)(3) D 11.116(b)(4) '11.116(b)(5) 11.116(b)(6) D 11. 116(b)(7) Please explain below: Certifications Check each box below that ls factually correct. WARNING: If a box is left unchecked, the regest will likely not be approved. 1. I/We have given reasonable notice to the client, prior to the expiration of the response period, that the practitioner(s) intend to withdraw from employment. 2. l/We have delivered to the client or a duly authorized representative of the client all papers and property (including funds) to which the client is entitled. 3. l/We have notified the client of any responses that may be due and the time frame within which the client must respond. Please provide an explanation, If necessary: [Page 1 of 2] This collection of lnformau‘on Is required by 37 CFR 1.36. The lnfon'nation is required to obtain or retain a benefit by the public which is to file (and by the USPTO to process) an application. Confidentiality is governed by 35 U.S.C. 122 and 37 CFR 1.11 and 1.14. Thls collection is estimated to take 12 minutes to complete, Including gathering, preparing, and submitting the completed appllcatlon form to the USPTO. Time will vary depending upon the Individual case. Any comments on the amount of time you require to complete thls form and/or suggestions for reducing this burden, should be sent to the Chlef Information Officer, U.S. Patent and Trademark Office, U.S. Department of Commerce, P.O. Box 1450, Alexandria, VA 22313-1450. DO NOT SEND FEES OR COMPLErED FORMS TO THIS ADDRESS. SEND TO: Commlssloner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. Ifyou need assistance in completing theform, call 1-8W-PTO-9199 and select option 2. PTO/SB/83 (04-13) Approved for use through 11/30/2014. OM B 0651-0035 U.S. Patent and Trademark Office, U.S. DEPARTMENT OF mMMERCE Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of Information unless It displays a valid 0MB control number. REQUEST FOR WITHDRAWAL AS A1TORNEY OR AGENT AND CHANGE OF CORRESPONDENCE ADDRESS__-___.-_-________.________, Complete the following section only when the correspondence address will charge. Changes of address will only be accepted to thefirst named inventor or an assignee that has properly made itselfof record pursuant to 37 CFR 3. 71 . Change the correspondence address and direct all future correspondence to: A. D The address of the first named inventor or assignee associated with Customer Num ber: OR B. First Named Inventor or Assignee Name Address tau-Metrix Inc., 1821 S. Bascom Ave., #222 CW Campbell StateCA Zip95008 CW US Te'evhone Ema" np@tau-metrix.com I am authorized to sign on behalf of myself and all withdrawing practitioners. Signature /Zurvan Mahamedi/ Name ZUrvan Mahamedi Registration No. 42,828 Address 1901 South Bascom Avenue, Suite 600 cm,Campbell StateCA Zip95008 CountryUS Date Apr” 1o, 201 5 Telephone No. 408-551 -6632 NOTE: Withdrawal is effective when approved rather than when received. [Page 2 of 2] This collection of informau'on is required by 37 CFR 1.36. The information is required to obtain or retain a benefit by the public which ls to file (and by the USPTO to process) an application. Confldentlallty ls governed by 35 U.S.C. 122 and 37 CFR 1.11 and 1.14. Thls collection ls estimated to take 12 minutes to complete, Including gatherlng, preparing, and submlttlng the completed application form to the USPTO. Time wlll vary depending upon the lndlvldual case. Any comments on the amount of tlme you require to com plete this form and/or suggestions for reducing thls burden, should be sent to the Chlef Information Officer, U.S. Patent and Trademark Office, U.S. Department of Commerce, P.O. Box 1450, Alexandria, VA 22313-1450. DO NOT SEND FEES OR COMPLETED FORMS TO THIS ADDRESS. SEND TO: Commlssloner for Patenm, P.O. Box 1450, Alexandrla, VA 22313-1450. lfyou need assistance In completing theform, call 1-800-PTO-9199 and select option 2. Privacy Act Statement The Privacy Act of 1974 (P.L. 93-579) requires that you be given certain information in connection with your submission of the attached form related to a patent application or patent. Accordingly. pursuant to the requirements of the Act, please be advised that: (1) the general authority for the collection of this information is 35 U.S.C. 2(b)(2); (2) furnishing of the information solicited is voluntary; and (3) the principal purpose for which the information is used by the U.S. Patent and Trademark Office is to process and/or examine your submission related to a patent application or patent. 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(http://www.uspto.gov/) BROWSE BY TOPIC ABOUT THIS SITE USPTO BACKGROUND FEDERAL GOVERNMENT Privacy-Tevms httpszllportaluspto.gov/pair/PublicPair 1/1 RJN no. 4 II PATENT ASSIGNMENT ll Electronic Version v1 .1 Stylesheet Version v1.1 I. SUBMISSION TYPE: NEW ASSIGNMENT l NATURE OF CONVEYANCE: SECURITY AGREEMENT CONVEYING PARTY DATA Inc. Execution Date 10 RECEIVING PARTY DATA Name: Venture Address: Fremont FORNIA Code: , Inc. 100 West Warren Avenue PROPERTY NUMBERS Total: 15 Property Type Patent Number: Application Number: Patent Number. Patent Number: Patent Number: Application Number: Patent Number: Patent Number: Application Number: Patent Number: Patent Number: Application Number: Application Number: PCT Number. PCT Number. 7730434 12791665 7220990 7423288 7723724 11469305 7339388 7605597 12557513 7256055 7736916 11763001 12547463 USO427770 U80955408 501663738 REEL: 026934 FRAME: 0237 7730434 CH $600.00 CORRESPONDENCE DATA Fax Number: (480)539-2100 Phone: 4805392109 Email: en'c.slrang@us.tel.com flConespondence m7/be sentb me emailaddrxs filst; ifmat is unsuccessfill, it willbe sent via US Mail. Compondent Name: En'c Strang Addms Line 1: 2545 W. Frye Road, Suite 1 Address Line 4: Chandler, ARIZONA 85224 I ATTORNEY DOCKET NUMBER: TVC-TMX-001 NAME OF SUBMI‘ITER: Eric Strang Total Attachmenm: 13 source=Security-Agreement_TEL-VC_TMX#page1 .tif i source:Security-AgreemenLTEL-VC_TMX#page2.tif source=Security-Agreement_TEL-VC_TMX#page3.tif source=Security-Agreement_TEL-VC_TMX#page4.fif source=Secun‘ty-AgreemenLTEL-VC_TMX#page5.tif source=Security-Agreement_TEL-VC_TMX#page6.tif J source=Security-Agreement_TEL-VC_TMX#page7.tif source=Secun'ty-Agreement_TEL-VC_TMX#page8.tif source=Security-Agreement_TEL-VC_TMX#pageQ.tif source=Security-Agreement_TEL-VC_TMX#page 1 0.tif source=Secun'ty-Agreement_TEL-VC_TMX#page1 1 .tif source=Security-AgreemenLTEL-VC_TMX#page12.tif source=Security-Agreement_TEL-VC_TMX#page13.fif PATENT REEL: 026934 FRAME: 0238 SECURITY AGREEMENT This SECURITY AGREEMENT, dated as of August fl ,2010 (this “ ecurigx Agreemenj’), ls made by and among tau-Metrix, Inc“ a Delaware corporation (the “TMX”), and TEL Venture Capital Inc. a Delaware corporation (the “Secured Pm”). Recitals A. Reference is hereby made to that certain Secured Convertible Promissory Note made by TMX in favor of Secured Party in an aggregate original principal amount of $500,000 (as amended, restated, modified or supplemented and in effect from time to time, the “Secured Conventible Note”) pursuant to that certain Convertible Note Purchase Agreement dated as of the date hereof, among TMX and Secured Party (as amended, restated, modified or supplemented and in effect from time to time, the ‘ “Purchase Agxeement,” and togeflxer with the Secured Convertible Note and this Security Agreement, the “ oan Documentg.”). Capitalized terms used in this Security Agreement and not otherwise defined herein shall have d'Ie uespective meanings set forth in Schedule II attached hereto or in the Purchase Agreement. B. It is a condition precedent to the funding of the loaf: under the Purchase Agreement that TMX shall have granted the security interests contemplated by this Security Agreement Agreement NOW, TI-EREFORE, in consideration of the premises and in order tn induce Secured Party to fund the original principal amount of the Secured Conventible Note, TMX hereby agrees as follows: Section l. Grant gf Security. TMX hereby grants to Secured Party, to secure the due and punctual repayment in cash of all of the Secured Obligations (defined below), a continuing security interest in and general lien upon, and pledges and collaterally assigns to Secured Party its right, title and interest in, all ofthe Collateral. Section 2. Security for Obligations. The Collateral secures the prompt and complete payment when due of all indebtedness and other obligations under the Loan Documents, whether direct or indirect, absolute or contingent, arising by Operation of law or otherwise, now existing or hereafier arising, including interest, fees, expenses, costs and expenses of enforcement, and attorneys’ fees and expenses, including any future advances, or refinancings, renewals or extensions of 01 substitutions for, any existing or future advances, and any and all costs, expenses and liabilities which may be made or incurred by Secured Party m any way in connection with the Loan Documents or any collateral security therefor (collectively, the “gggurgg Ohligfiiggss’.’) Section 3. t i ' ntoFile Financin S teme ts. (a) TMX hereby irrevocably authorizes Secured Party, at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any financing statements and amendments thereto that (i) indicate the Collateral (A) as all assets of TMX or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Uniform Commercial Code as in effect In any applicable jurisdiction, or (B) as being of an equal or lesser scope or with greater detail, and (ii) provide any other information requircd by part 5 of Article 9 ofthe Uniform Commercial Code as in effect'm any applicable jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (A) whether TMX is an organization, the type of organization and any organization identification number issued to TMX, and (B) PATENT REEL: 026934 FRAME: 0239 in the case of a' financing statement filed as a fixture filing or indicating Collateral as as-cxtracted coliateral or timber to be cut, a sufficient description of real property to whichthe Collateral relates. (b) TMX agrees to furnish to Secured Party, promptly upon request, any and all information referred to in Section 3(a). Section 4. IIMX Remains Liable. Anything herein to the contrary notwithstanding, the Secured Party shall have no bbligation or liability, nor be obligated to perform any of the obligations or duties of TMX by reason of the security interest granted to Secured Party, as contemplated by this Security Agreement Section 5. Regresentations and Warranties. TMX represents and warrants to Secured Party, as follows: (a) The chief place of business and chief executive office ofTMX are located at the address(es) specified on Schedule 1(a) hereto. The exact legal name ofTMX is indicated on the signature page hereof. TMX is an organization of the type, and is organized in and under the laws of the jurisdiction, set forth in the introductory paragraph hereof. (b) The Collateral constituting tangible personal property is located at the address(es) as specified on Schedule 11b) hereto. (c) Except as set forth on Schedule I(c) hereto, TMX is the sole and exclusive owner of the‘entire right, title and interest in the Collateral. Except as set forth on Schedule I(c) hereto, TMX owns its rights in the Collateral free and clear of any lien, claim, encumbrance, license, right of first refusal or other restriction, except for the security interest created by this Security Agreement. Except as set forth on Schedule 11c) hereto, no effective financingstatement or other instrument similar in efi'ect covering all or any pan ofthe Collateral is on file in any recording office, except for financing statements filed in favor of Secured Party relating to this Security Agreement. (d) TMX conducts no business under any name or trade name other than its proper corporate name. (e) To the Company’s knowledge, this Security Agreement creates, and in the case of afier-acquired Collateral this Security Agreement will create at the time TMX first has rights in such afier-acquired Collateral, in favor of Secured Party, a valid and enforceable and, upon the filing of financing statements in the jurisdictions set fonh in Schgdule I(d) to this Security Agreement, which financing statements have been filed and are effective as ofthe date hereof, a perfected security interest in the Collateral securing the payment and performance of the Secured Obligations, subject only to the interests set forth on Schedule 1(0). Ali other actions necessary or desirable to create such securiiy interests have been duly taken. (t) Performance of this Security Agreement does not conflict with or result in a breach of any other agreement to which TMX is bound, and this Security Agreement constitutes the grant ofa security interest. (g) Other than the filing of financing statements in the manner referred to in subsection (e) above and appropriate recordings with respect to the Intellectual Property Collateral, no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the grant by TMX of the security interest granted hereby or for the execution, delivery or performance ofthis Security Agreement by TMX. PATENT REEL: 026934 FRAME: 0240 Section 6. Further Assurances. (a) TMX agrees that from time to time, at the expense ofTMX, TMX will pmmptly execute and deliver all further instruments and documents, and take all further action, that may be necessary, or that Secured Party may reasonably request, in order to perfect ’and protect any security interest granted or purported to be granted hereby or to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Secfion 7. Covenm. TMX covenants and agrees with Secured Party as follows during the term that that the security interests granted under this Security Agreement remain in effect: -(a) Without providing at least 30 days prior written notice to Secured Party, TMX will not change its name, its place of business or, if there be more than one such place, its chief executive office, its mailing address or its organizational identification number if it has one, (b) TMX will preserve its corporate existence and will not change its type of organization, jurisdiction of organization or other legal structure nor merge into or consolidate with any other entity or sell all or substantially all of its assets in a single transaction or series of related transactions, (c) The Collateral (including items that constitute tangible personal property), to the extent not delivered to Secured Party, will be kept at those locations listed on Schedule {(9) and TMX will not remove the Collateral from such locations, without providing at least 30 days prior written notice to Secured Party, except for sales made in the ordinary course of business, (d) TMX shall not enter into any agreement tha‘t would materially impair or conflict with TMX’s obligations hereunder without Secured Party’s prior written consent, (e) Upon any executive officer of TMX obtaining actual knowledge thereof, TMX will promptly notify Secured Party in writing of any event that materially adversely affects: (i) the value of any Collateral, (ii) the ability ofTMX to dispose of any Collateral and (iii) the rights and remedim of Secured Party in relation thereto, including the attachment, seizure or forfeiture of or the levy of any legal process against any ofthe Collateral, (t) TMX shall promptly advise Secured Party of any material adverse change in the composition of the Intellectual Property Collateral, including any ownership right of TMX in or to any Computer Hardware and Soflware, Trademark, Patent, Copyright, or other Intellectual Property Collateral and any abandonment, forfeiture or dedication to the public of any Computer Software and Hardware, Trademark, Patent, Copyright and other Intellectual Property Collateral, (g) TMX shall defend the Collateral against all claims and demands of all persons (other than Secured Party) claiming an interest therein if failure to defend such claims and demands would have a material adverse efl‘ect on the Collateral. TMX shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon the Collateral, or incurred in connection with the use or operation of such Collateral or inCurred in connection with this Security Agreement, and all claims against the Collateral, except to the extent that there is a good faith contest of the validity thereof and in respect of which TMX ha’s established and maintains adequate funded reserves therefor, PATENT REEL: 026934 FRAME: 0241 (h) TMX will, at its own expense, keep and stamp or otherwise mark any of its documents, instruments and chattel paper and its books and records relating to any of the Collateral in such manner as Secured Party may reasonably require to reflect the interests of Secured Paxty in the Collateral, (i) TNDC will, at its own expense, keep the Collateral in good order and repair and TMX will not use or permit the use of any Collateral in violation of law or any policy of insurance themon and will not permit anything to be done that will materially impair the value of any Collateral or the security intended to be afforded thereby, (j) TMX will permit Secured Party or its designee, to inspect the Collateral during normal business hours, on reasonable advance notice, wherever located, (k) Excepting the endorsement in the ordinary course of business of negotiable instruments for deposit or collection, TMX shall not become or be liable, directly or indimctly, primary or secondary, matured or contingent, in any manner, whether as guarantor, surety, accommodation maker, or otherwise, for the existing or future indebtedness of any kind ofany person or entity, and (l) TMX shall not make or have outstanding loans, advances, extensions of credit or capital contributions to, or investments in, any Person other than the obligations under the Loan Documents, trade payables incurred in the ordinary course and indebtedness for the deferred purchase of properly or services. Section 8. Transfer and Other Liens. TMX shall not, without the prior written consent of . Secured Party: (a) Sell, assign (by operation of law or otherwise), transfer, hypothecate, or otherwise dispose of any of the Collateral or any of its rights in the Collateral, except in the ordinary course of business, provided TMX may enter into reasonable and customary agreements with third parties to protect TMX’s ownership of the Collateral. (b) Create or suffer to exist any lien upon or with respect to any of the Collateral to secure debt of any third party. (c) Except for the security interest herein granted and Permitted Liens (as defined below), fail to be the owner of or otherwise lose its rights in the Collateral free from any right or claim of any other person or any lien, security interest or other encumbrance; pledge, mortgage or create, or suffer to exist any right of any person in or claim by any person to the Collateral, or any security interest, lien or other encumbrance in the Collateral in favor ofany person, other than Secured Party hereunder, except for Permitted Liens, and TMX shall not permit any of the Collateral to be attached, seized forfeited, abandoned, dedicated or levied upon under any legal process; permit any Collateral to become an accession to any property as to which Secured Party do not have a first priority security interest; file or authorize or permit to be filed in any jurisdiction any financing statement relating to any of the Collateral naming any secured party other than Secured Party. For purposes of this Security Agreement, the term “Permitted Liens” shall mean (i) liens or charges for current taxes, assessments or other governmental charges other than those arising from income taxes (A) which are not yet due and payable or (B) the validity of which is being contested in good faith by appropriate proceedings upon stay of execution of the enforcement thereof and for which adequate reserves have been set aside on the books of TMX in accordance with GAAP; (ii) liens or charges incurred in the ordinary course of business of TMX in connection with workers’ compensation, unemployment insurance or other forms of governmental PATENT REEL: 026934 FRAME: 0242 insurance or benefits; (iii) mechanics’, materialmen’s, warehousemen’s or other similar liens arising in the ordinary course of TMX’s business which either (A) are inchoate and relate to an' obligation which is not yet due and payable, or (B) are being contested in good faith and for which adequate reserves have been set aside on the books of TMX in accordance with GAAP; and (iv) liens listed on Schedule 1101 hereto. (d) Tm shall not execute a negative pledge agreement with any Person covering any of the Collateral. ‘ Section 9. Secured Pm Appointed Attomey-in-Fact. Upon the occurrence and during the continuance of an Event of Default (as defined below), TMX hereby irrevocably appoints Secured Patty, as TMX’s attomey-in-fact, with full authority in the place and stead ofTMX and in the name of TMX, Secured Party or otherwise, to take any action and to execute any instrument which Secured Pany may deem necessary or advisable to accomplish the purposes ofthis Security Agreement, including: (a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect ofany ofthe Collateral; (b) to receive, endorse, assign, and collect any and all checks, notes, drafis and other negotiable and non-negotiable instruments, documents and chattel paper, and TMX waives notice of presentment, protest and non-payment of any instrument, document or chattel paper so endorsed or assigned; (c) ' to file any claims or take any action or institute any proceedings which Secured Party may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights 0f Secured Party with respect to any of the Collateral; . (d) to sell, transfer, assign or otherwise deal in or with the Collateral or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof; and (e) to the extent that TMX’s authorization given in Section 3 is not sufficient, to file such financing statcmcnts with respect hereto, or a phowcopy of thi‘s Security Agreement in substitution for a financing statement, as Secured Party may deem appropriate and to execute in TMX’s name such financing statements and amendments thereto and continuation statements which may require TMX’s signature. To the extent permitted by law, TMX hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and is irrevocable. ' Section 10. Secured Pm May Pefigm. IfTMX fails to perform any agreement contained herein and such failure continues for a period of 15 days following notice by Secured Party to TMX of such failure, Secured Party may itself perform, or cause perfprmance of, such agreement. In Secured Party’s sole discretion, ifTMX fails to do so and such failure continues for a period of 15 days following notice by Secured Party to TMX of such failure, Secured Party may discharge taxes and other encumbrances at any time levied or placed on any of the Collateral, make repairs thereto and pay any necessary filing fees or insurance premiums. TMX agrees to reimburse Secured Party on demand for all expenditures so made. Secured Party shall have no obligation to TMX to make any such expenditures, nor shall the making thereof be construed as a waiver or cure any Event ofDefault. PATENT REEL: 026934 FRAME: 0243 Section 11. Sgcured Pam’s Duties. The powers conferred on Secured Pmty hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except as set forth below and for the safe custody of any Collateral in its possession and the accounting for moneys actually received by them hereunder, Secured Party shall not have any duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Anything herein to the contrary notwithstanding, TMX shall nemainpbligated and liable under each contract or agreement included in the Collateral to be observed or performed by TMX thereunder. Secured Party shall not have any obligation or liability under any such contract or agreement by reason of or arising out ofthis Security Agreement or the receipt of any payment relating to any of the Collateral, nor shall Secured Party be obligated in any mannef to perform any ofthe obligations ofTMX under or pursuant to any such contract or agreement, to make inquiry as to the nature or sufficiency of any payment in respect of the Collateral or as to the sufficiency of any performance by any party under any such contract or agreement, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to Secured Party or to which Secured Party may be entitled at any time or times. Secured Patty’s sole duty with respect to the custody, safe keeping and physical preservation of the Collateral in its possession, under section 9~207 of the Uniform Commercial Code of the State of California or otherwise, shall be to deal with such Collateral in the same manner as with similar property held for it own accounts. Section 12. Remedies. If any amounts shall become due and payable under the Secured Convertible Note and TMX has not fully repaid such amount by the date set forth therein (an “Event of Dgfault”): (a) Secured Party may exercise in respect ofthe Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code (the “Code”) and any additional rights and remedies as may be provided to a secured party in any jurisdiction in which Collateral is located, including the right to mke possession of the Collateral, and for that purpose Secured Party may, so far as TMX can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the same therefrom, and the right to sell the Collateral or any party or item thereof at one or mom sales, in each case for cash or for credit (or a combination thereof). To the extent sold for credit TMX will be credited only with payments actually made by thc purchaser and received by Secured Party. Secured Party may in its sole discretion require TMX to assemble all or any part of the Collateral at such location or locations within the jurisdiction(s) ofTMX’s principal ofl’lce(s) or at such other locations as Secured Party may reasonably designate. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Secured Party shall give to TMX at least 15 days prior written notice of the time and place of any public sale of Collateral or of the time afiel- which any private sale or any other intended disposition is to be made. TMX hereby acknowledges that 15 days prior written notice of such sale or sales shall be reasonable notice. In addition, TMX waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of Secured Party’srights and remedies hereunder, including its right following an Event of Default to take immediate possession of the Collateral and to exercise its rights and remedies with respect thereto. 7 _ (b) All cash proceeds received by Secured Party in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, afler payment of all expenses arising under this Security Agreement, in the sole discretion of Secured Party, be held by Secured Party as Collateral for, and/or then or at any time thereafier applied in whole or in part by Secured Party against, all or any part of Secured Obligations in such order as Secured Party shall elect. Any surplus of such cash or cash proceeds received from any source or held by Secured Party and remaining afier payment in full of all the Secured Obligations to Secured Party shall be paid over to TMX. PATENT REEL: 026934 FRAME: 0244 Section 13. Egpenses. TMX shall upon demand pay to Secured Party the amount of any and all reasonable expenses which Secured Party may incur in connection with (l) filing or recording fees incurred in connection with this Security Agreement or (2) the custody, preservation, maintenance, use or operation of, or the sale of, collection from, or other realization upon, any of the Collateral or the enforcement of im rights hereunder or otherwise provided by law. Section l4. Noticeg. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed telex or facsimile if sent durin‘g normal business hours of the recipient, and if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (l) day afier deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications for TMX shall be sent to: tau-Metrix, Inc., , Attention: CEO; all communications intended for Secured Party shall be sent to: TEL Venture Capital, Inc., 3100 West Warren Ave., Fremont, CA 94538, Fax: S [0-624-345 1, Attention: ‘ or at such other address as TMX or Secured Party may designate by ten( 10) days advance written notice to the other parties hereto. Section 15. Continuing Securig Igtgrest. This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until payment in full and/or other satisfaction in full of the Secured Obligations, (b) be binding upon TMX, its permitted successors and assigns, and (c) inure to the benefit of Secured Party and its permithed successors, transferees and assigns. Upon the payment in full or other satisfaction in full of the Secured Obligations (including conversion of all of the Secured Obligations into shares ofTMX as set forth in Section 5 of the Secured Convertible Note), the security interest granted hereby shall terminate and all rights to the Collateral shall reven to TMX. Upon any such termination, Secured Party shall at 'I'MX’s written request and expense file a release of each Financing Statement that Secured Patty filed pursuant to the authority granted in Section 3 ‘ in each filing offices in all Uniform Commercial Code jurisdiction where such Financing Statements were originally filed or amended and, at TMX's expense, promptly execute and deliver to TMX such documents asTMX may reasonably request to evidence such termination. Section 16. Marshalling. Secured Party shall not be required to marshal any present or future collateral security (including the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, TMX hereby agrees that it will not invoke any law relating to the marshalling of collateral which might cause delay in or impede the enforcement of Secured Party’srights and remedies under this Security Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any ofthe Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, TMX hereby irrevocably waives the benefits of all such laws. Section 17. to Juri ictio d ervice of Process. TMX agrees that any action or claim arising out of any dispute in connection with this Security Agreement. any rights or obligations hereunder or the performance or enforcement ofsuch rights or obligations may be brought in the courts of the State of California or any federal court sitting therein and consents to the nan-exclusive jurisdiction of such court and to service of process in any such suit being made upon TMX by regular or certified mail at the address specified in Section l4 hereof. TMX hereby waives any objection that it may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient court. PATENT REEL: 026934 FRAME: 0245 Section 18. Governing Law; Terms. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH TIE LAWS OF THE STATE 0F CALIFORNIA EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HERBUNDER, OR REMEDIES HEREUNDER, IN RESPECT 0F ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE 0F CALIFORNIA. Unless otherwise defined herein or in the Purchase Agreement, tclms used in Article 9 of the Code in the State of California are used herein and in any Schedule hereto as thereili defined. Section 19. Coungmarts. This Security Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered by all parties shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all ofwhich taken together shall constitute on and the same agreement. Section 20. Successors and Assigns. This Security Agreement shall be binding upon and shall inure to the benefit of the successors or assigns ofTMX and Secured Party and shall constitute a continuing agreement, applying to all future as well as existing transactions between TMX and Secured Party and their successors and assigns. - Section 21. Migcellggeous. This Security Agreement supercedes all prior or contemporaneous agreements, oral or written among the parties concerning the subject matter hereto. This Security Agreement is in addition to and not in limitation of any other rights and remedies Secured Party may have by virtue of any other document executed by TMX or by law or otherwise. All of the rights and remedies of Secured Party hereunder arg cumulative and not exclusive of any other right or remedy provided hereunder or by applicable law. Secured Party shall not by any delay or omission be deemed to have waived any of its rights or remedies hereunder. A waiver by Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to or waiver of any such right or remedy which Secured Party would have had on any future occasion nor shall Secured Party be liable for exercising or failing to exercise any such right or remedy. Ifany term of this Security Agreement shall be held to be invalid, illegal or unenforceable, the validity of_ all other-terms hereof shall in no way be affected thereby, and this Security Agreement shall be construed and be enforceable as if such invalid, illegal or unenforceable term had not been included herein. TMX acknowledges receipt of a copy of this Security Agreement. Section 22. Ammdmgnt; Waiver. Any term, covenant, agreement or condition of this Agreement may be amended, and compliance therewith may be waived (either generally or in a particular cimumstance and either retroactively or prospectively), by one or more substantially concurrent written instruments signed by TMX and Secured Party. No other amendment or waiver of any provision of this Security Agreement or consent to any departure by TMX herefrom shall be effective or enforceable for any purpose. Any waiver or consent given to TMX hereunder shall be effective only in the specific instance and for the specific purpose for which given. Section 23. Mg. Unless the context of this Security Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular the plural, the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusive meaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder” or “herein” relate to this Security Agreement. Any determination as to whether a situation is material shall be made by taking into account the effect of all other provisions of this Security Agreement that contain a qualification with respect to materiality so that the determination is made after assessing the aggregate effect of all such situations. Section, subsection, Schedule and Exhibit references arc to this Security Agreement unless otherwise specified. Any reference to a party’s being satisfied with any particular item or to a party's PATENT REEL: 026934 FRAME: 0246 determination of a particular item presumes that such standard will not be achieved unless such party shall be satisfied or shall have made such determination in its sole or complete discretion. IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be duly executed and delivered as of the date first above written. TAU-METRIX, INC. By- MW 1 \. Naéne: x/wéc mmmnu Title: C £0 SECURED PARTY: TEL VENTURE CAPITAL, INC. By: Name: Title: 9 PATENT REEL: 026934 FRAME: 0247 (a) (b) (0) (d) SCHEDULE I to Securig Agzeement Place of Business [Chief Place ofBusiness and Chief Executive Office): ChiefPlace «Business; 33119 nltuw Coccccé Zuo I $13 («a ChiefExecutive Office: WA Com." c4 gag] I tio f I te a1 Sfiné Existing Liens and Financing Statements None Jurigdictions Delaware Cmmw'fi 10 PATENT REEL: 026934 FRAME: 0248 SCHEDULE II Q §ecurim Agreement As used in this Security Agreement, the following terms shall have the following respective meanings: “Collateral” means all personal and fixture property of every kind and nature, wherever located; whether now owned and existing or hereafier acquired or arising, and all proceeds and products thereof, including without limitation, all (a) goods (including without limitation inventory, equipment and any accessions thereto), (b) instruments (including without limitation promissory notes), (c) documents, (d) accounts (including without limitation health-care~insurance receivables), (c) chattel paper (whether tangible or electronic), (f) deposit accounts, (g) letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), (h) commercial tort claims, (i) securities and all other investment property, (j) supporting obligations, (k) any other contract rights or rights to the payment of money, (l) insurance proceeds, (m) all general intangibles (including without limitation all payment intangibles), and (n) all Intellectual Property Collateral. “Computer Hardware and Software Collateral” means: (a) all computer and other electronic data‘processing hardware, integrated computer systems, central processing units, memory units, display terminals, printers, features, computer elements, card readers, scanners, tape drives, hard and sofi disk drives, cables, electrical supply hardware, generators, power equalizers, accessories and all peripheral devices and other related computer hardware, relating to TMX's business; (b) all software programs (including source code, Object code and all related applications and data files) relating to TMX’s business, and all versions thereof, whether now owned, licensed or leased or hereafier deveIOped, designed or acquired; (c) all firmware associated with the property described in clauses (a) add (b) of this definition; (d) all documentation (including flow charts, logic diagrams, manuals, guides and specifications) with respect to such hardware, software and firmware described in the preceding clauses (a) through (c); (e) all rights with respect to any or all of the foregoing, including without limitation, any and all patents, copyrights, licenses, options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications and any substitutions, rcplacements, additions or model convetsions of any of the foregoing; and (f) all proceeds of, and rights associated with, the foregoing (including license royaltiés and proceeds of infringement suits), the right to sue third parties for past, present or future infringements of any rights in the foregoing, and all rights corresponding thereto throughout the world. ~“Copyright Collateral” means all copyrights ofTMX and all semi-conductor chip product mask works of TMX, whether under statutory or common law, registered or unregistered, now or hereafter in force throughout the world, including, without limitation, all of TMX’s right, title and interest in and to all copyrights and mask works registered in the United States Copyright Office or anywhere else in the world, and all applications for registration thereof, whether pending or in preparation, all copyright and ll PATENT REEL: 026934 FRAME: 0249 mask work licenses, the right to sue for past, present and future infringements of ai1y thereof, all rights corresponding thereto throughout the world, all extensions and renewals of any thereof and all proceeds of the foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages and proceeds of suit. "Intellectual Property Collateral" shall mean, collectively, the Computer Hardware and Software Collateral, the Copyright Collateral, the Patent Collateral, the Trade Secrets Collateral and the Trademark Collateral (each as defined herein), now or hereafter owned, existing, created, acquired or held. "Patent Collateral" means: a. all of TMX's letters patent and applications for letters patent throughout the world, including all patent applications in preparation for filing anywhere in the world, whether now owned and existing or hereafter acquired; b. all patent licenses ofTMX (whether as licensee or licensor); c. . all reissues, divisions, continuations, continuations-in-part, extensions, renewals and reexaminations of any of the items described in clauses (a) and (b) of this definition; and d. all proceeds of, and rights associated with, the foregoing (including license royalties and proceeds of infringement suits), the right to sue third parties for past, present or future infringements of any patent or patent application, including any patent or patent application referred to herein, and for breach or enforcement of any patent license, including any patent license referred to herein, and all rights conesponding thereto throughout the world. ''Trade Secrets Collateral" means all common law and statutory trade secrets and all other confidential or proprietary or useful information of TMX and all know-how, ideas and inventions, conceived, obtained by or used in or contemplated at any time for use in the business ofTMX (all of the foregoing being collectively called "Trade Secrets''), in each case whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating or referring in any way to any such Trade Secret, au · Trade Secret licenses of TMX (whether as licensee or licensor), including each Trade Secret license referred to herein, and including the right to sue for and to enjoin and to collect damages for the actual or threatened misappropriation of any Trade Secret and for the breach or enforcement of any such Trade Secret license. ''Trademark Collateral" means: a. all of TMX's: trademarks, trade names, domain names, corporate names, company namest business names, fictitious business names, trade styles, service marks, certification marks, collective marks, logos, other source of business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of a like nature {all of the foregoing items in this clause (a) being collectively called a "Trademark"), now owned and existing anywhere in the world or hereafter adopted or acquired, whether currently in use or not, alJ registrations and recordings thereof and all applications in connection therewith, whether pending or in preparation for filing, including registrations, recordings and applications in the United States Patent and Trademark Office or in any office or agency of the United States of America or any state thereof or any foreign country; b. all Trademark licenses (whether as licensee or licensor); c. alJ reissues, extensions or renewals of any of the items described in clauses (a) and (b) of 12 PATENT REEL: 026934 FRAME: 0250 this definition; d. all ofthe goodwill ofthe business connected with the u'se of, and symbolized by the items described in, clauses (a) and (b); and c. all proceeds of, and rights associated with, the foregoing, including any claim by TMX against third patties for past, present or future infringement or dilution of any Trademark, Trademark registration or Trademark license, including any Trademark, Trademark registration or Trademark license referred to herein, or for any injury to the goodwill associated with the use of any such Tradeka or for breach or enforcement ofany Trademark license. l3 PATENT RECORDED: 09/20/2011 REEL: 026934 FRAME: 0251 \OOOQONM-bUJNr-d NNNNNNNNNh-Ir-Ir-Iv-AHHHHHH mVQU‘h‘»N¥-‘O©WNO\M#WNHO PROOF OF SERVICE MAHAMEDI IP LAW LLP vs. TAU-METRIX, INC., et al. Case N0. l7-CV-3 1 0071 STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 2440 Camino Ramon, Suite 253, San Ramon, CA 94583. On February 11, 2020, I served the foregoing document described as: DEFENDANT NADER PAKDAMAN’S REPLY IN SUPPORT OF DEMURRERS T0 PLAINTIFF’S FOURTH AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR JUDICIAL NOTICE on the interested parties in this action as follows: SUSAN S.Q. KALRA, ESQ. (susan@m-iplaw.com) Mahamedi IP Law LLP 910 Campisi Way, Suite 1E Campbell, CA 95008 TERENCE N. CHURCH (Terry@tchurchlaw.com) Law Office of Terence N. Church 2400 Camino Ramon, Suite 176 San Ramon, CA 94583 terry@tchurchlaw.com (X) By electronic service via the court system and via email, to Susan Kalra, Esq. Terry Church, Esq., based 0n a court order or an agreement ofthe parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (X) (STATE) I declare under penalty of perjury under the laws of the state 0f California that the above is true and correct. EXECUTED this 11th day of February 2020, at San R on, California. /, ' \ Robert S. Robinson -2- DEFENDANTNADER PAKDAMAN ’S REPLY1NSUPPORT 0F DEMURRERS CASE N0. 1 7-CV-310071
