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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: [email protected]: (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 | [email protected]
Insert Document Name Here
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 [email protected]
Insert Document Name Here
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 [email protected]
Insert Document Name Here
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 [email protected]