proginet8k122308ex10-1.htm


    
      

      

    

    
      Exhibit
10.1

      December
23, 2008

      


      


      Debra A.
DiMaria

      65
McCulloch Drive

      Dix
Hills, NY  11746

      


      


      Re:           Employment
Terms

      


       

      Dear
Debra:

       

      I am
delighted to memorialize your employment with Proginet Corporation (the
“Company”) in the position of Chief Financial Officer in accordance with the
following terms.  If you accept these terms, your employment with the
Company shall continue without interruption through December 31, 2009, unless
terminated earlier as set forth herein, and shall not renew unless agreed to in
writing by you and the Company.

       

      You will
serve as Chief Financial Officer and will have such duties, responsibilities and
authority as you have previously been assigned, are normally associated with
such positions, are not inconsistent with the position of Chief Financial
Officer and are otherwise determined by the Chief Executive Officer (the
“CEO”).  You will be expected to perform your duties faithfully and to
the best of your ability, on a part time basis (approximately 24 hours per
week).  You will not, without the prior written consent of the CEO,
directly or indirectly provide any material services to any other business
concern, other than participation in charitable activities for non-profit
businesses that do not interfere with your duties hereunder.  You will
report directly to the CEO.

       

      Your
compensation shall be as follows:   An annual base salary of
$100,000 (“Base Salary”) which shall be effective for the period January 1, 2009
to December 31, 2009.  In addition, you shall be eligible to receive
from the Company (a) an annual bonus to be determined in the discretion of the
Board of Directors (the “Board”), (b) a matching contribution to the Company’s
401(k) plan to the extent provided under Company policy as in effect from time
to time,  (c) grants of stock options pursuant to the Company’s 2000
Stock Option Plan or such other equity incentive plan as may be adopted by the
Board from time to time, in the sole discretion of the Board, and (e) other
forms of compensation as shall be determined from time to time by the Board in
its sole discretion.

       

      You will
be eligible to participate in the Company’s group health and insurance plans and
401(k) plan, as in effect from time to time and in accordance with their
terms.  You will be entitled to three (3) weeks of paid vacation per
year, which vacation shall be taken in accordance with the Company’s policies in
effect from time to time.  You shall be entitled to be reimbursed for
standard and reasonable business expenses that you incur on Company business in
connection with the performance of your duties hereunder, provided that you
furnish the Company with reasonable documentation of such expenses when you are
requesting such reimbursement.

       

      In
addition, subject to the provisions below, you will also receive additional
compensation amounting to $54,954 representing four (4) months of your Fiscal
2008 annual base salary (“Additional Compensation”).  Additional
Compensation will be paid in semi-monthly installments according to the
Company’s regular payroll practices during the term hereof through December 31,
2009.

       

      


      
        
          
             


          

          
             


            
              

            

          

          
             


          

        

      

       

      The
Company may terminate your employment at any time with or without “Cause”, and
with or without a specified notice period, subject to the provisions
below.  You may terminate your employment with or without “Good
Reason”, subject to the provisions set forth below; provided, however, that any
termination by you must be on no less than 90 days written notice.

       

      If your
employment is terminated by the Company with Cause (except as a result of your
death or Disability (as defined below)), or if you terminate your employment
without “Good Reason”, you shall be entitled only to the payment of Base Salary
to the date of termination, any unreimbursed standard and reasonable business
expenses as described above, and Additional Compensation  to the date
of termination; provided that in the event of a termination by the Company
pursuant to clause (vii) of the definition of Cause below (with respect to the
Company’s D&O insurance), you shall also be entitled to continued payment of
your Additional Compensation during the remainder of the term of this letter as
if your employment relationship were not so terminated, in accordance with the
Company’s regular payroll practices.

       

      If your
employment relationship is terminated by you with Good Reason or by the Company
without Cause, subject to your execution and non-revocation of a general release
and waiver in a form acceptable to the Company, you will be entitled to
continued payment of your Base Salary and Additional Compensation during the
remainder of the term of this letter as if your employment relationship were not
so terminated, in accordance with the Company’s regular payroll
practices.

       

      Additionally,
if your employment is terminated by the Company as a result of your Disability
(as defined below), subject to your execution and non-revocation of a general
release and waiver in a form acceptable to the Company, you will continue to be
paid your Base Salary until the earlier of (i) six (6) months from the date of
your Disability or (ii) the date on which you first receive payment under any
insurance policy with respect to such Disability; you will also receive the
Additional Compensation you earned through the date of termination.

       

      Except as
explicitly set forth in this letter, there shall be no payments of any kind,
including severance, payable by the Company or any of its affiliates to you with
respect to any termination of your employment with the Company.

       

      “Cause”
means the occurrence of any of the following events, subject to your reasonable
opportunity to be heard by the Board in all cases: (i) your continual or
deliberate neglect of the performance of your duties (including the failure to
follow any lawful directive of the Board which is material to the duties of a
Chief Financial Officer ), which continues uncured for 10 days after receipt of
written notice from the Company or the  Board ; (ii) your failure
to devote the hours note above to the business of the Company (other than any
such failure resulting from illness or your Disability), which continues uncured
for 10 days after receipt of written notice from the Company or the Board;
(iii) your engaging willfully in material misconduct in connection with the
performance of any of your duties, including, without limitation, by
misappropriating funds or securing or attempting to secure personally any profit
in connection with any transaction entered into on behalf of the Company;
(iv) your willful or material breach of any of the material terms of this
letter (including a termination by you without Good Reason) or of your
employment with the Company or your violation, in any material respect, of any
material provision of a code or standard of behavior generally applicable to
employees or executives of the Company, which continues uncured for 10 days
after receipt of written notice from the Company or the Board; (v) your
active disloyalty to the Company, including, without limitation, willfully
aiding a competitor or improperly disclosing confidential information;
(vi) your commission or conviction of, your being indicted for, or your
plea of nolo contendere
(or its equivalent) to, a felony, any crime involving fraud or embezzlement
under federal, state or local laws or a crime involving moral turpitude; or
(vii) the Company’s D&O insurance carrier increases by $10,000 or more the
Company’s premiums or other costs with respect the Company’s D&O insurance
policy, or limits coverage or terminates or fails to renew or extend the
Company’s D&O insurance policy, or threatens to do any of the foregoing, for
any reason relating, directly or indirectly,  to the continuation of
your relationship with the Company.

       

      


      
        
          
             


          

          
             


            
              

            

          

          
             


          

        

      

       

      “Disability”
means: (i) you are unable to perform your duties and responsibilities
contemplated by this letter agreement as a result of physical or mental
incapacity, illness or other condition, whether total or partial, for a period
of (A) in excess of 90 consecutive days or (B) in excess of 120 days within any
12 month period; or (ii) it is reasonably apparent that, due to the nature of
any physical or mental incapacity, illness or other condition, whether total or
partial, you will be unable to perform your duties and responsibilities
contemplated by this letter agreement as a result of such physical or mental
incapacity, illness or other condition for a period of (A) in excess of 90
consecutive days or (B) in excess of 120 days within any 12 month
period.

       

      “Good
Reason” means any of the following (each of the following, a “Good Reason
Condition”), without your prior
consent:  (a) a  diminution by the Company of your Base
Salary; (b) a change by the Company in, or a transfer by the Company of,
your duties in such a manner that your duties are materially inconsistent with
the position of Chief Financial Officer, or a material diminution by the Company
in your title or position such that you (i) are no longer the Chief
Financial Officer of the Company or (ii) no longer report to the CEO;
(c) a change by the Company in your current principal work location to a
location that is more than 30 miles from such current principal work location
(unless such change effectively reduces your commute time); or (d) any
other material breach by the Company of a material term of this letter agreement
(including, without limitation, the Company’s failure to pay any material
amounts owed to you by the Company when due); provided, however, that each of
the following conditions must have been satisfied with respect to any
termination with Good Reason: (x) you must have delivered written notice to
the Company and the Board of the existence of such Good Reason Condition within
one hundred and twenty (120) days after the initial existence of such Good
Reason Condition (“Employee Good Reason Notice”); (y) such Good Reason
Condition must have continued uncured for thirty (30) days following the
receipt by the Company and Board of such Employee Good Reason Notice; and
(z) you must have terminated your employment with the Company based on Good
Reason by delivering written notice to the Company and the Board within one
hundred and eighty (180) days after the initial existence of such Good Reason
Condition.

       

      You agree
that, during the term of your employment and thereafter, you will not copy, use
or disclose (except (i) as required by law after first notifying the Company and
giving it an opportunity to object or (ii) as required to enforce your rights
hereunder) any Proprietary Information without the Company’s prior written
permission.  The Company may withhold such permission as a matter
within its sole discretion during the term of this agreement and
thereafter.  Upon any termination of your employment, you shall turn
over to the Company all property, writings or documents then in your possession
or custody belonging to or relating to the affairs of the Company or comprising
or relating to any Proprietary Information.  “Proprietary Information”
shall mean any information (in whatever form, tangible or intangible) of or
relating to the Company or the Company’s business or the Company’s customers,
clients, consultants, suppliers, vendors or business associates (including,
without limitation, any information or any business concepts relating to any of
the Company’s products, formulations or marketing plans), which information the
Company maintains as confidential or proprietary and/or is not generally known
by or available to the public at large (including, without limitation, any trade
secret or other information that is used in the Company’s business and gives the
Company an opportunity to obtain an advantage over its competitors who do not
know and/or do not use it).

       

      This
letter agreement shall be governed pursuant to the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws.  In the event that any provision or
term of the letter agreement, or any word, phrase, clause, sentence or other
portion thereof is held to be unenforceable or invalid for any reason, such
provision or portion thereof will be modified or deleted in such a manner as to
make this letter agreement, as modified, legal and enforceable to the fullest
extent permitted under applicable laws.

       

      


      
        
          
             


          

          
             


            
              

            

          

          
             


          

        

      

       

      The
employment terms in this letter supersede any other agreements or promises made
to you by anyone, whether oral or written, including without limitation your
Management Continuity Agreement with the Company, and comprise the final,
complete and exclusive agreement between you and the Company with respect to the
subject matter hereof.  Any waiver or modification of this letter
agreement, or of any covenant, condition, or limitation contained herein, is
valid only if in writing duly executed by the parties hereto.  As
required by law, this offer is subject to satisfactory proof of your right to
work in the United States and confirmation of your legal ability to enter into
this agreement and provide the services contemplated hereby.

       

      Notwithstanding
any provision of this letter agreement to the contrary, in the event that the
Company determines that any amounts payable hereunder would otherwise be taxable
to you under Section 409A of the Internal Revenue Code, and the Department of
Treasury Regulations and other interpretive guidance issued thereunder (“Section
409A”), including, without limitation, any such regulations or other guidance
that may be issued after the date hereof, the Company may adopt such amendments
to this letter agreement and appropriate policies and procedures, including
amendments and policies with retroactive effect, that the Company determines in
its discretion are necessary or appropriate to comply with the requirements of
Section 409A and thereby avoid the application of penalty taxes under such
section; provided, however, that such actions may not result in any diminishment
of the compensation and benefits payable to you under this letter agreement
without your consent.

       

      Please
sign and date this letter, and return it to me as soon as possible and in no
event later than December 31, 2008 if you wish to memorialize your employment
with the Company under the terms described herein.  If you accept
these terms, your employment with the Company shall continue without
interruption.

       

      We look
forward to your favorable reply and to a productive and enjoyable work
relationship.

       

       

      Sincerely,

      


      PROGINET
CORPORATION

      


       

       By:_________________________________

       NAME:
Sandison Weil

       TITLE:
Chief Executive Officer and President

      


      


       

      Agreed
and accepted by:

       

      Debra A.
DiMaria

      


      


      ___________________________________

      Date: