CAUSE NO. CC-19-03982-A

JOHN HEINEL, §

Plaintiff, g IN THE COUNTY COURT-AT-LAW

V. g OF DALLAS COUNTY, TEXAS

PERVACIO, INC., g COURT-AT-LAW NO. 1

Defendant. g

PLAINTIFF HEINEL’S 1“ AMENDED MOTION FOR DEFAULT JUDGMENT

TO THE HONORABLE COURT:

COMES NOW, Plaintiff John Heinel, and files for default judgment against Defendant

Pervacio, Inc., and in support of such this amended motion} would show as follows:

I. BASIS FOR DEFAULT JUDGMENT

Plaintiff Heine] worked as Vice President 0f Strategic Accounts until June 1, 2019. He

resigned his employment due to lack of payment 0f compensation and reimbursement 0f

monetary benefits due to him under his Employment Agreement With Pervacio (“Pervacio”

herein). On July 9, 2019, Heinel brought suit against Pervacio for unpaid compensation.

Heinel effected personal service 0n July 29, 2019 by serving Pervacio’s Texas registered

agent. (See Exhibit 1, Which was filed With the Court the same day.) Pursuant t0 the Texas Rules

0f Civil Procedure, Pervacio’s answer was due by 10:00 am. on August 19, 2019. Pervacio has

1 On September 19, 2019, with Heinel’s original Motion for Default Judgment pending, Sr.

Judge Ted M. Akins issued a notice that he deemed Heinel’s Motion deficient due to a lack of

authenticated Employment Agreement t0 support his contentions in his declaration. This 1“

Amended Motion adds the Employment Agreement in question, as well as an AmendedDeclaration 0f Heinel that authenticates the Employment Agreement. Otherwise, the contentions

made and relief sought by Heinel in this 1“ Amended Motion for Default Judgment are the sameas those in his original Motion for Default Judgment.

FILED10/1/2019 1:25 PMJOHN F. WARRENCOUNTY CLERKDALLAS COUNTY

not filed an answer and has not otherwise responded t0 this suit, and the return 0f service has

been 0n file for at least 10 days. Heinel has satisfied the criteria for the filing 0f a default

judgment against Pervacio and now so moves for default judgment.

II. DAMAGES

Heinel’s claims and damages are supported by the attached Declaration of John Heinel —

Exhibit 2. Heinel worked as Pervacio’s VP of Strategic Accounts and had a written employment

agreement that governed his compensation. Pervacio had cash flow issues, causing Pervacio t0

default on various components 0f Heinel’s monetary compensation, including Heinel’s base

salary itself. Heinel has stated in his Declaration that under penalty 0f perjury, he is owed a total

0f at least $347,163 in unpaid compensation. Therefore, Heinel seeks a default award of

$347,163 against Pervacio, as well as an award of costs and post-judgment interest.

CONCLUSION AND PRAYER

Heinel has properly effected service 0n Pervacio. Pervacio has not timely answered this

suit. The Court should grant a default judgment to Plaintiff John Heinel for $347,163 against

Pervacio, Inc. The Court should further grant post-judgment interest at the rate of 5.5% per

annum, as well as costs. Heinel’s proposed Order follows the signature block, below.

Respectfillly submitted,

g a

,a,orfiw—Kerry V. O’BrienTexas Bar N0. 2403 8469Board Certified in Labor & Employment Law by the TBLS

101 1 Westlake Drive

Austin, Texas 78746email: ko@obrienlawpc.comphone: (512) 410-1960

fax: (512) 410-6171

O'BRIEN LAW FIRMTEXASEMPLOYEES‘COM

Heinel v. Pervacio, Inc. / Plaintiff's Motion for Default Judgment

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

For purposes 0f default judgment, since the Defendant has not answered this suit, no

service 0f this pleading is necessary.

/s/ Kerry V. O’Brien

Kerry O’Brien

Heine] v. Pervacio, Inc. / Plaintiff’s Motion for Default Judgment

CAUSE NO. CC-19-03982-A

JOHN HEINEL, §

§ IN THE COUNTY COURT-AT-LAWPlaintiff, §

§ OF DALLAS COUNTY, TEXASv. §

§PERVACIO, INC., § COURT-AT-LAW NO. 1

§Defendant. §

DECLARATION OF JOHN HEINEL

My name is John Heinel. I am the plaintiff in the above-styled case. I am competent t0

make this declaration. The facts stated in this declaration are within my personal knowledge and

are true and correct. I am submitting this Declaration for my 1“ Amended Motion for Default

Judgment, solely t0 authenticate the Employment Agreement that was attached t0 my Original

Petition.

1. I worked as Vice President of Strategic Accounts for Pervacio, Inc. until June 1, 2019. I

resigned my employment due t0 lack 0f payment 0f compensation and monetary benefits due t0

me under my Employment Agreement With Pervacio.

2. As of today, Pervacio owes me at least $347,163, for the following amounts:

a. From the pay period ending May 31, 2018 to the pay period ending May 3 1, 2019,

Pervacio owed me $250,000 of base salary, per our Employment Agreement. Pervacio

only paid me $90,000 0f base salary during that time, leaving a debt of $160,000 0f base

salary.

b. During the same May 16, 2018-May 31, 2019 period of time, Pervacio wasobligated, per our Employment Agreement, t0 reimburse me for a car allowance at a rate

0f $390 per pay period. This comes t0 a total 0f $9,750, for the 25 pay cycles involved.

Pervacio actually reimbursed me for $3,510, leaving a gross reimbursement balance of

$6,240.

c. In 2018, I helped Pervacio secure contracts with Asurion and Hyla, with a total

contract price 0f $5.5 million. Pursuant the Employment Agreement, I am owed 40% of

my base salary for this success, as a bonus, which comes t0 $96,000. However, pursuant

to a bonus multiplier in the Employment Agreement, I could receive 150% of my bonus

based 0n CSAT and ESAT scores. Pervacio pre-emptively breached the EmploymentAgreement, by repeatedly failing t0 pay my base salary timely, among other failings.

Therefore, under Texas law, I am due t0 the maximum benefits under the Employment

Agreement because Pervacio materially breached the agraement and prevented the

projects from proceeding t0 CSAT and ESAT scores during my employment. My 40%bonus comes t0 $96,000. Therefore, When the 150% multiplier is applied, the bonus I wasactually entitled t0 is $ 144,000.

d. Pervacio additionally owes me 8 weeks 0f severance pay under the EmploymentAgreement, totaling $36,923.08, due t0 the fact that I was constructively discharged,

Without cause.

3. In total, Pervacio, Inc. owes me at least $347,163 and that is the amount that I hereby

claim upon default judgment.

4. The Employment Agreement attached as Exhibit A t0 the Original Petition, and also

attached here as Exhibit A, is a true and correct copy 0f the Employment Agreement that

governed my compensation With Pervacio, and that provides me to the monetary relief I amseeking through this case.

I declare under penalty 0f perjury that the above statements are true and correct to the

best ofmy knowledge.

Executed in Cobb County, State 0f Georgia, on September 30,2019.

JOHIQJHEINEL

John Heine] Declaration 2

EXHIBIT APERVAC|O°

August 24, 2017

John Heinel

9706 Onyx Ln

Brentwood, TN 37027

Dear John:

We are delighted to confirm our offer of employment to you as Vice President, Strategic Accounts for Pervacio, Inc.

Initially you will manage Asurion account globally. You will be also part of the executive management team of

Pervacio. You will report directly to the President & COO of Pervacio. The purpose of this letter is to set forth our

understanding of the terms of your employment as follows:

Start Date: Your start date wi|l be October 22, 2017.

Base Salary: Your annual base salary will be USD 240,000 which is paid in 24 equal installments of USD 10,000 and

is subject to deductions for taxes and other withholdings as required by law or the policies of Pervacio.

Bonus: You will be eligible for a bonus of 100% of your base pay per annum based upon meeting the "performance

objectives” as outlined below and overall company performance.

Performance Objectives:

Revenue Growth: Your primary objective is to increase the annual recurring revenues within the accounts that you

will manage. Your first account will be Asurion globally. Following table defines revenue targets and corresponding

bonus percentages.

Additional Recurring Revenues Bonus Percentage

USD 2,000,000 20%USD 4,000,000 40%USD 6,000,000 60%USD 8,000,000 80%USD 10,000,000+ 100%

Table 1: Bonus eligibility

Customer Satisfaction: Pervacio will measure customer satisfaction every quarter. If CSAT for the accounts managed

by you are low then you will receive only 40% of your bonus calculated per Table 1. If CSAT is satisfactory then you

will receive 100% of your bonus calculated per Table 1. If CSAT is exceptional then you will receive 120% of the bonus

calculated per the Table 1.

Team Satisfaction: Pervacio will measure employee satisfaction every quarter via a 360% feedback system. If ESAT

for the employees managed by you are low then you will receive only 40% of your bonus calculated per Table 1. If

Pervacio Inc.

5605 N. MacArthur Blvd, Suite 740, Irving, TX — 75038 | 888-221-4762 I www.gervacio.com | services@pervacio.cot

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ESAT is satisfactory then you will receive 100% of your bonus calculated per Table 1. If ESAT is exceptional then youwill receive 120% of the bonus calculated per Table 1.

If CSAT and ESAT are both exceptional then you will receive 150% of the bonus calculated per Table 1.

Car Allowance: Pervacio will reimburse USD 780 only per month for your car allowance.

Benefits: Pervacio offers a competitive benefits package. The current company health, life, disability and dental

insurance coverage are supplied per company policy for you and your family.

Eligibility for other benefits, including Long Term Care, Basic Life Insurance, Supplemental Life Insurance, Optional

Cancer and Accident Insurance, Travel Insurance, Flexible Spending Account, Health Reimbursement Account will

generally take place per company policy from full time employment. Employee contribution to payment for benefit

plans is determined annually.

Vacation and Personal Emergency Time Off: Vacation is accrued at four (4) weeks on an annual basis. In addition,

you will receive ten (10) paid company holidays and three (3) personal days. Personal emergency days are generally

accrued per company policy. Unused vacation is not accrued per company policy.

Stock Options: In addition, if you decide to join Pervacio, Pervacio shall grant you an option to purchase 25,000

shares of Pervacio’s Restricted Stock at a price per share equal to the fair market value per share of the Restricted

Stock on the date of grant, as determined by Pervacio's Board of Directors. The vesting period for these 25,000

options begins on your start date:

a. 25% of the shares subject to the option shall vest 12 months after the date your vesting begins subject to

your continuing employment with Pervacio, and no shares shall vest before such date.

b. The remaining shares shall vest yearly over the next 3 years in equal yearly amounts subject to your

continuing employment with Pervacio.

All these option grants shall be subject to the terms and conditions of Pervacio's Stock Option Plan and Stock Option

Agreement, including vesting requirements. No right to any stock is earned or accrued until such time that vesting

occurs, nor does the grant confer any right to continue vesting or employment.

Termination of Employment. Your employment with Pervacio may be terminated, prior to the expiration of the

term of this Employment Agreement, in accordance with any of the following provisions:

a. Termination by Employee: You may terminate your employment at any time during this agreement by giving

4 weeks’ notice in writing to the President of Pervacio. During the notice period, you must fulfill all your duties

and responsibilities set forth above and use your best efforts to train and support your replacement, if any.

Failure to comply with this requirement may result in Termination for Cause described below, but otherwise

your salary and benefits will remain unchanged during the notification period.

b. Termination by Pervacio without cause: Pervacio may terminate your employment at any time during the

course of this agreement by giving four weeks’ notice in writing to you. During the notice period, you must

fulfill all your duties and responsibilities set forth above and use your best efforts to train and support your

replacement, if any. Failure to comply with this requirement may result in Termination for Cause described

below, but otherwise your salary and benefits will remain unchanged during the notification period. Pervacio

shall provide additional 8 weeks of severance pay in addition to the notice period pay.

Pervacio Inc.

5605 N. MacArthur Blvd, Suite 740, lrving, TX —‘75038I 888-221-4762 I www.9ervacio.com I services@pervacio.cot

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c. Termination by Pervacio for Cause: Pervacio may, at any time and without notice, terminate your

employment for "cause". Termination by Pervacio for "cause" shall include but not be limited to termination

based on any of the following grounds: a) fraud, misappropriation, embezzlement or acts of similar

dishonesty; (b) conviction of a felony invotving moral turpitude; (c) illegal use of drugs or excessive use of

alcohol in the workplace; (d) intentional and willful misconduct that may subject Pervacio to criminal or civil

liability; (e) breach of the your duty of loyalty, inciuding the diversion or usurpation of corporate opportunities

properly belonging to Pervacio; (f) willful disregard of Pervacio policies and procedures; (g) breach of any of

the material terms of this Agreement; and (h) insubordination or deliberate refusal to follow the instructions

of the President of Pervacio. Pervacio shall not provide any severance in case of termination of employment”for cause”.

Employment Agreement: You and Pervacio will jointly execute an Employment Agreement after you have accepted

our offer. This agreement will acknowledge Pervacio as an ”At Will” employer under that doctrine and will further

define Termination rights for both parties, Confidentiality Invention Assignment and Arbitration Agreement which

requires, among other provisions, the assignment of patent rights to any invention made during your employmentat Pervacio, and non-disclosure of company proprietary information.

As a company employee, you will be expected to abide by Pervacio’s rules and standards. Specificalty, you will be

required to sign an acknowledgment that you have read and that you understand Pervacio's rules of conduct which

are included in Pervacio Handbook, which Pervacio will soon complete and distribute.

For purposes of federal immigration law, you will be required to provide to Pervacio documentary evidence of your

identity and eligibility for employment in Europe. Such documentation must be provided to us within three (3)

business days of your date of hire, or our employment relationship with you may be terminated.

We also ask that, if you have not already done so, you disclose to Pervacio any and all agreements relating to your

prior employment that may affect your eligibility to be employed by Pervacio or limit the manner in which you maybe employed. Pervacio understands that any such agreement will not prevent you from performing the duties of

your position and you represent that such is the case.

Moreover, you agree that, during the term of your employment with Pervacio, you wiH not engage in any other

employment, occupation, consulting or other business activity directly related to the business in which Pervacio is

now involved or becomes involved during the term of your employment, nor will you engage in any other activities

that conflict with your obligations to Pervacio. Similarly, you agree not to bring any third party confidential

information to Pervacio, including that of your former employer, and that in performing your duties for Pervacio you

will not in any way utilize any such information.

To accept Pervacio’s offer, please sign and date this letter in the space provided below. A duplicate original is

enclosed for your records. This letter, along with any agreements relating to proprietary rights between you and

Pervacio, set forth the terms of your employment with Pervacio and supersede any prior representations or

agreements including, but not limited to, any representations made during your recruitment, interviews or

pre-employment negotiations, whether written or oral. This letter, including, but not limited to, its at-will

employment provision, may not be modified or amended except by a written agreement signed by the President of

Pervacio and you.

We are confident that you will enjoy the opportunity and challenges that Pervacio, lnc. provides and that you will

make a valuable contribution to its growth and development.

Pervacio Inc.

5605 N. MacArthur Blvd, Suite 740, Irving, TX -— 75038 | 888—221—4762 I www.9ervacio.com I services@pervacio.cor

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Please accept my personal best wishes for a successful and rewarding career with us.

Very truly yours,

Sanjay Kanodia

Chairman, Founder and CEOPervacio, In .‘

i L(A ir‘Hg/m”Achgfited (John Heinel)

(Signature)

Pervacio Inc.

5605 N. MacArthur Blvd, Suite 740, Irving, TX — 75038 I 888-221—4762 I www.gervacio.com l services@pervacio.cor