Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.May 29, 2019COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Adron W. Beene SB# 129040 Adron G. Beene SB# 298088 Attorneys at Law 1754 Technology Drive, Suite 228 San Jose, CA 95110 Tel: (408) 392-9233 Fax: (866) 329-0453 adron@adronlaw.com Attorneys for Plaintiff Thinh Nguyen SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Thinh Nguyen an individual Plaintiff, Vs. Uniquify, Inc., Theresa Mai and DOES 1-25 inclusive. Defendants Case No.: COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS; AND FRAUD) Plaintiff, Thinh Nguyen, alleges as follows: 1. Thinh Nguyen (“Nguyen”) is an individual and resides in Santa Clara County California. E-FILED 5/29/2019 5:28 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV348924 Reviewed By: M Vu 19CV348924 COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Defendant Uniquify, Inc. (“Uniquify”) is a California corporation with its principal place of business at 2030 Fortune Drive, Suite 200, San Jose, CA 95131. 3. Defendant Theresa Mai is an employee of Uniquify and was doing the acts alleged as authorized by Uniquify. Theresa Mai is also sued individually for her credit card fraud. Theresa Mai resides at 5974 Charlotte Drive, San Jose, CA 95123. 4. Plaintiff does not know the true names of Does 1-25 and will add the true names when they are known. Does 1-25 are agents, co-conspirators, aider and abettors or responsible parties of defendants and liable for the damages sought in this complaint. 5. Theresa Mai sought a loan from plaintiff for Uniquify. On March 16, 2017, Plaintiff made short terms loans to Uniquify as requested by Theresa Mai (“Agreements”). One agreement was a written Short Term Loan Agreement dated March 16, 2017 and the other a Secured Promissory Note dated May 29, 2018. A true and correct copy of the Short Term Loan Agreement is attached as Exhibit A. A true and correct copy of the Secured Promissory Note is attached as Exhibit B. 6. Under the Agreements, Uniquify borrowed $100,000 payable with interest at a rate of 10% per annum. The Secured Promissory Note is secured with the assets of the company and provided plaintiff 15,000 shares Uniquify Common Stock. 7. Plaintiff had a total of $100,000 wired to Uniquify’ s account at AvidBank. After Uniquify made a partial payment of $10,000, in March 14, COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2017, the amount was returned to Theresa Mai, at her request, to continue the loan with Uniquify. 8. The Agreements were made and governed by the laws of California, and venue is proper in Santa Clara County, California. 9. Plaintiff is informed and believes that Uniquify was negligent and did not control Theresa Mai’s access to cash and Uniquify released to Theresa Mai $50,000 to pay off the Short Term Loan Agreement. Theresa Mai only paid down $10,000 which was returned such that the Short Term Loan Agreement was not paid. No interest payments have been made on the Secured Promissory Note and the 15,000 common stock shares in Uniquify has not been delivered to plaintiff. The Agreements are in default. 10. Plaintiff is informed and believes that Theresa Mai kept the $50,000 and did not return it to Uniquify. The basis of this belief is Theresa Mai made purchases inconsistent with her standard of living. It could also be that the second loan of $50,000 was used by Theresa Mai to cover her receipt of the first $50,000 in a ponzi scheme fashion. Uniquify has refused to cooperate in resolving what happened reflecting they knew what was happening and aided and abetted the fraud. Uniquify has not paid back the Agreements to plaintiff. 11. There is now due and owing the sum of $100,000 owed to plaintiff and 15,000 shares of Uniquify common stock are owed to plaintiff. // // // COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 First Cause of Action (Breach of Contract) (Against Uniquify and Theresa Mai) 12. Plaintiff incorporates the allegations of ¶¶ 1-11 as set forth above. 13. Plaintiff and Uniquify enter into the Agreements. 14. Plaintiff fully performed all its obligations under the Agreements except those that were prevented, waived or excused. 15. Uniquify has breached the Agreements by not repaying the loans. 16. Because of Uniquify’s breach of the Agreements, plaintiff has been damaged in the amount of at least $100,000 plus interest at the rate of 10% per annum and attorney’s fees under the Agreements. 17. To the Extent the Secured Promissory Note is found to be a note owed only by Theresa Mai, then she owes plaintiff $50,000 on the Secured Promissory Note. Wherefore, Plaintiff prays for judgment as set forth below. Second Cause of Action (Common Counts) (Against Uniquify and Theresa Mai) 18. Plaintiff incorporates the allegations of ¶¶ 1-17 as set forth above. 19. Uniquify became indebted to Plaintiff for money had and received. 20. $100,000 is now due and owing by Uniquify to Plaintiff with interest at the rate of 10% per month. COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21. To the extent the Secured Promissory Note is found to be a note owed only by Theresa Mai, then she owes plaintiff $50,000 with interest at the rate of 10%. Wherefore, Plaintiff prays for judgment as set forth below. Third Cause of Action (Fraud) (Against Theresa Mai) 22. Plaintiff incorporates the allegations of ¶¶ 1-16 as set forth above. 23. Plaintiff is informed and believes that Theresa Mai charged over $16,792.73 worth of products from Amazon using plaintiff’s credit card from his business. All products were purchased under assumed names and delivered to Theresa Mai’s residence at 5974 Charlotte Drive, San Jose, CA 95123. 24. The charges were without authority and fraudulent. Plaintiff is informed and believes Theresa Mai purchased goods from Amazon representing to Amazon she was an authorized credit card holder when she was not. As a result of TM’s fraudulent use of plaintiff’s credit cards, plaintiff has been damaged in the amount of $16,792.73. 25. Theresa Mai’s conduct was fraudulent against plaintiff and justifies an award of punitive damages. Wherefore, Plaintiff prays for judgment as set forth below. Fourth Cause of Action (Fraud) (Against Theresa Mai and Uniquify) COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26. Plaintiff incorporates the allegations of ¶¶ 1-21 as set forth above. 27. Plaintiff is informed and believes that Theresa Mai works in the finance department of Uniquify. On or about March 16, 2017 Theresa Mai represented to plaintiff that he was lending money to Uniquify and the Secured Promissory Note was secured by the assets of the company. In reliance on Theresa Mai’s representations the money for the loans were wired to Uniquify. 28. Plaintiff is informed and believes that Theresa Mai borrowed money from plaintiff through her employee in a sham transaction without any intent for Uniquify to repay. 29. Plaintiff is informed and believes that Theresa Mai was either paid the plaintiff’s money or given access to money for repayment but kept the money herself. Uniquify did not take any reasonable actions to control the repayment of the funds. 30. Uniquify was advised they owed the money and the loans had not been repaid to plaintiff. Uniquify brushed off the claim as a family matter. Theresa Mai is not a family member of plaintiff. Uniquify took no effort to determine they in fact received the money and had not repaid to loans to plaintiff. 31. Theresa Mai’s conduct was authorized and ratified by R A Sheffield, the Chief Financial Officer of Uniquify and allowed Theresa Mai to induce plaintiff to lend the company money without any intention of repayment. Uniquify aided and abetted Theresa Mai’s fraud. COMPLAINT FOR DAMAGES (BREACH OF CONTRACT; COMMON COUNTS AND FRAUD) 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32. As a result of defendant’s fraudulent acts. plaintiff has been damaged in the amount of $100,000.00. 33. Defendants conduct was fraudulent, malicious, and oppressive against plaintiff and justifies an award of punitive damages. WHEREFORE, plaintiff demands judgment against defendants, jointly and severally, as follows: 1. For damages in the amount of $100,000 according to proof at trial on the First, Second, and Fourth Causes of Action; 2. For Damages in the amount of $16,792.73 against Theresa Mai only on the Third Cause of action; 3. For punitive damages on the Third (against Theresa Mai only) and against both defendants on the Fourth Causes of Action; 2. For attorney’s fees as provided under the Agreements; 3. For interest on damages at 10% per annum from March 16, 2017 on the Short Term Loan Agreement and from May 29, 2018 on the Secured Promissory Note; and 4. For such further relief as the Court considers proper. Dated: February 4, 2019 _______________________________ Adron W. Beene SB# 129040 Attorney At Law 1754 Technology Drive, Suite 228 San Jose, CA 95110 Tel: (408) 392-9233 Fax: (866) 329-0453 adron@adronlaw.com Attorney for Plaintiff Thinh Nguyen EXHIBIT A EXHIBIT A . . Uniquify, Inc. U n I u I f 2030 Fortune Dr,. Suite 200San Jose. CA 95131 id ea 515 i l i C 0 n 408.235.8810 phone 408.904.7349 fax http://www.uniquify.com SHORT TERM LOAN AGREEMENT This Loan and Security Agreement, dated as of March 16, 2017 (this “Agreemenf’), is entered by and between Uniquify, lnc., a California corporation (“Borrower"), and Thinh Nguyen (“Lender"). The panics agree as follows: THE ADVANCES. Advances. Subject to the terms and conditions ofthis Agreement, Lender will make Advances to Borrower in the principal amount of $50,000 on the date of this Agreement. Lender will transfer the amount of this Advance to Borrower’s account. The proceeds of the Advance shall be used to for working capital needs. The Advance date will be the date funds are received in the Borrower’s account. Pavments. Advances. Interest shall accrue on the unpaid principal amount ofthe Advances fieln the Advance date until the Advances are paid in full, at the fixed rate of interest equal Io ten percent (10%) per annum, calculated upon a year of 365 or 366 days (as applicable) and actual days elapsed. Repayment. The entire outstanding principal balance of the Advances, all accrued and unpaid interest thereon, and all fees and other amounts outstanding hereunder shall be immediately due and payable at the one month anniversary of the date of the advance date. The repayment amount on the one month anniversary ofthe advance date received by Uniquify, will be $50,416.67 which covers repayment of principal and interest for one month, plus a penalty of $1,083.33. This totals $51,500.00. Ifthe repayment is delayed past the first month anniversary date, then further interest will accrue, and if not repaid until the two month anniversary ofthe advance date, then the total repayment amount would be $50,833.34 which covers principal and two months interest, plus another n-v. second penalty of$ l £83.33. For each ensuring monthly anniversary the cycle of calculating the repayment of interest and penalty will continue as the same ofthe first and second month anniversary until the loan is repaid in full. If the total repayment is delayed past the third month anniversary date. Uniquify agrees to pay the accrued interest by the last day ofthe month, each month. until any outstanding balances are paid in full, All payments are to be made by check or online transfer, as instructed below: Beneficiary: Thinh Nguyen Beneficiary Address: 2527 Home Crest Drive, San Jose. CA 95148 Beneficiary Fl: Bank ofAmerica, NA. Beneficiary Fl Address: 26] l N 151 SI. San Jose, CA 95l34 Beneficiary Account No.: 001826904706 Beneficiary Fl Routing: 121000358 Beneficiary Fl SWIFT: BOFAUSéS EXHIBIT A o o Uniquify, lnc. U n I q u Ify 2030 Fonune Dr.. Suite 200San Jose. CA 95131 Ideaszsmcon 408.235.8810 phone 408.904.7349 fax httpzllwww,uniquify.com Collection Costs. Ifany payment obligation under this Agreement is not repaid within one year from the advance date, the Borrower may be responsible for all costs of collection. including but not limited to attorney, court, and filing fees. Default. Ifany ofthe following events of default occur, this Agreement and any other obligations ofthe Borrower to the Lender. shall become due immediately, without demand or notice: l) the failure of the Borrower to pay the principal and any accrued interest and penalties afier one year from the advance date; 2) the liquidation, dissolution, or insolvency ofthe Borrower; 3) the filing of bankruptcy proceedings involving the Borrower as a debtor; 4) the application for the appointment ofa receiver for the Borrower; 5) the making ofa general assignment for the benefit ofthe Borrower's creditors: 6) the sale ofa material portion ofthe business or assets ofthe Borrower Goveming Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations ofthe parties hereto shall be governed, construed and interpreted in accordance with the laws ofthe State of California, without giving effect to principles ofconflicts oflaw. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement among the parties hereto pertaining to the subject matter hereof, The parties have executed this Short Term Loan Agreement as of the date first written above. BORROWER COM NY: LENDER: Thinh Nguyen EXHIBIT B EXHIBIT B SECURED PROMISSORY NOTE Principal Amount:W Date of Note: May 29, 2018 Interest Rate:W PROMISE T0 PAY. For value received, Theresa Mai (”Payer”) promises to pay to Thinh Nguyen ("Payee"), or order, in lawful money of the United States of America, at 1459 e San Fernando San Jose, CA 95116 the principal amount of $50,000.00, with interest on the entire outstanding principal sum remaining from time to time unpaid from the date hereof at 10.0% per annum until the principal hereof, together with accrued and unpaid interest, is paid in full. Interest on this Note is computed on a 365/360 simple interest basis; that is, by applying the 10.0% rate over a year of 360 days, times the outstanding principal balance, times the actual number of days the principal balance is outstanding. All interest payable under this Note is computed using this method. Accrued Interest will be paid monthly, on June 1, August 1, September 1, and so on for a minimum of twelve months. PAYMENT ON MATURITY DATE. All principal and any outstanding accrued interest shall be due and payable in one lump sum on the Maturity Date, as defined below, unless such amount shall have been paid earlier. As used herein, the Maturity Date shall be in two years, May 29, 2020. Payments of principal and interest shall be made in lawful money of the United States of America and shall be credited first to the accrued interest, with the remainder applied to principal. SECURITY INTEREST. This Note is secured by the assets of the company. PREPAYMENT. Payor will have the right to prepay this Note, in whole or in part, at any time and from time to time, without penalty, prior to the Maturity Date (but no earlier than twelve months), such as in the case of Change in Control of the company (Payor). Payor agrees not to send Payee any partial pre-payments marked "paid in full", "without recourse", or similar language. If Payor sends such a payment, Payee may accept it without losing any of Payee's rights under this Note, and Payor will remain obligated to pay any further amount owed to Payee. Upon prepayment of any portion of the principal amount of this Note, interest will cease on the amount of principal prepaid. DEFAULT. Payor will be in default if any of the following happens (an “Event of Default"): (a) Payor fails to pay this Note in full on the Maturity Date. (b) Payor files a voluntary petition in bankruptcy or an involuntary bankruptcy petition is filed against Payor, which petition is not dismissed within 30 days of such petition filing. PAYEE'S RIGHTS. In the Event of Default, Payee may declare the entire outstanding principal balance to be due and payable by providing notice of same to Payor. If Payor does not fully cure such default within 15 days of receiving such notice from Payee, the outstanding principal balance and all accrued but unpaid interest on this Note shall thereupon be immediately due and payable in full. Payee may hire or pay someone else to help collect this Note if Payor does not pay any amounts when due hereunder. In such case, Payor also will pay Payee, subject to any limits under applicable law, Payee's reasonable attorneys' fees and Payee's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate an automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Payor also will pay any court costs, in addition to all other sums provided by law. This Note has been delivered to Payee and accepted by Payee in the State of California, and it shall be deemed to be a contract made under the laws of the State of California. All disputes or controversies arising out of or relating to this Note, or the breach thereof, shall be litigated only in the United States District Court or in the court of the State of California having competent jurisdiction and located within Santa Clara County. Payor hereby consents and submits to the jurisdiction of such courts with 1111419 EXHIBIT B respect to such disputes, controversies or claims, and Payor will not object to or otherwise seek removal of any action brought in those courts based upon an inconvenient forum argument or for any other reason. STOCK GRANTS. For value received, Payor agrees to grant to Payeemhares of Uniquify Common Stock under Theresa Mai. RIGHT OF FIRST REFUSAL AND RESTRICTIONS ON TRANSFER OF STOCKS. (a) If Payee proposes to sell, assign, transfer, pledge, hypothecate 0r otherwise dispose of, by operation of law or otherwise (collectively, “transfer") any shares acquired upon exercise of this grant, then the Payee shall first give written notice of the proposed transfer (the "Transfer Notice") to the Payor. The Transfer Notice shall name the proposed transferee and state the number of such shares the Payee proposes to transfer (the "Offered Shares"), the price per share and all other material terms and conditions of the transfer. (b) The Payee shall not transfer any shares, or any interest therein, to any person or entity that is a competitor of the Payor, as determined by the Board of Directors of the Company in its sole discretion, un|ess such transfer is made in connection with the sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise. GENERAL PROVISIONS. Time is expressly declared to be of the essence for all purposes under this Note. Payee may delay or forgo enforcing any of his rights or remedies under this Note without losing them. Payor, to the extent allowed by law and not otherwise expressly set forth above, hereby waives any applicable statute of limitations, presentment, demand for payment, protest and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, Payor shall not be released from liability. Payor agrees that Payee may renew or extend (repeatedly and for any length of time) this loan, or take any other action deemed necessary by Payee without the consent of or notice to anyone. This Note and all the covenants, promises and agreements contained in this Note shall be binding upon and shall inure to the benefit of Payor and Payee, and their respective permitted successors and assigns. Payor may not delegate, assign or otherwise transfer any of Payor’s obligations under this Note without first obtaining the prior written consent of Payee or any subsequent holder of this Note, which consent may be given or withheld in the sole discretion of Payee or any such holder. This Note may not be terminated orally, but only by a discharge in writing signed by the holder of this Note at the time such a discharge is sought. PRIOR TO SIGNING THIS NOTE, PAYOR HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS OF THIS NOTE. PAYOR AGREES TO THE TERMS OF THIS NOTE AND ACKNOWLEDGES RECEIPT OF AN EXECUTED COPY OF THIS NOTE. PAYOR: By: AM-x/ fx"; Theresa Mai Accegted: PAYEE: Thinh Nguyen 1111419
