Employment Agreement (John Flavio)



 Exhibit 10.9 
 February 21, 2007 
 John Flavio 
 Dear John: 
 On behalf of PAR3 Communications, Inc. (the “Company”), I am pleased to offer you the position of
Chief Financial Officer of the Company on the following terms: 
 1. Position. 
 (a) You will be employed as the Chief Financial Officer of the Company, working out of the Company’s headquarters office in Seattle, Washington. You
will report to the Chief Executive Officer of the Company. Your duties and responsibilities shall include the duties and responsibilities customarily associated with your corporate offices and positions and such other duties and responsibilities
assigned by the Chief Executive Officer and the Board of Directors, including the duties and responsibilities set forth in the Company’s bylaws from time to time in effect, in all cases to be consistent with your corporate offices and
positions. Concurrent with the commencement of your employment with the Company, you will resign from the Company’s Board and all Committees you are then serving on. 
 (b) You agree to the best of your ability and experience that you will at all times loyally and conscientiously perform all of the duties and obligations required of and from you pursuant to the express and implicit
terms hereof, and to the reasonable satisfaction of the Company. During the term of your employment, you further agree that you will devote all of your business time and attention to the business of the Company, the Company will be entitled to all
of the benefits and profits arising from or incident to all such work services and advice, you will not render commercial or professional services of any nature to any person or organization, whether or not for compensation, without the prior
written consent of the Company, and you will not directly or indirectly engage or participate in any business that is competitive in any manner with the business of the Company. The Company hereby acknowledges and consents to your continued service
on the board of ProV International so long as such service does not interfere with, or conflict with, your obligations to the Company hereunder. Nothing in this letter agreement (this “Agreement”) will prevent you from accepting
speaking or presentation engagements in exchange for honoraria or from serving on boards of charitable organizations, or from owning no more than one percent (1%) of the outstanding equity securities of a corporation whose stock is listed on a
national stock exchange. 
 2. Start Date. Subject to fulfillment of any conditions imposed by this Agreement, you will
commence this new position with the Company on April 2, 2007 (the “Start Date”). 







 3. Proof of Right to Work. For purposes of federal immigration law, you will be required to
provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three business days of your date of hire, or our employment relationship with you may
be terminated. 
 4. Cash Compensation. 
 (a) Salary. You will be paid a monthly salary of $18,750, which is equivalent to $225,000 on an annualized basis (the “Base Salary”), subject to standard payroll deductions and
withholdings and payable pursuant to the Company’s regular payroll practices. The Base Salary will be reviewed annually as part of the Company’s normal salary review process. 
 (b) Bonus. Your annual target incentive bonus will be $65,000. Your entitlement to incentive bonuses from the Company is discretionary and
shall be determined by the Board or its Compensation Committee in good faith, consistent with past practices for your position, and based upon the extent to which your individual performance objectives and the Company’s profitability objectives
and other financial and nonfinancial objectives are achieved during the applicable bonus period. 
 5. Stock Option Grant.

 (a) In connection with the commencement of your employment, the Company will
recommend that the Board of Directors grant you an option to purchase 1,400,000 shares of the Company’s Common Stock (“New Option Shares”) with an exercise price equal to the fair market value on the date of the grant. The New
Option Shares will vest at the rate of 25% of the shares on the twelve (12) month anniversary of your Vesting Commencement Date (as defined in your Stock Option Agreement, which date will be your Start Date, as defined above) and 1/48th of the total number of New Option Shares per month thereafter. Vesting will, of course, depend on your continued employment with the Company. The option will
be subject to the terms of the Company’s 2000 Stock Option Plan and the Stock Option Agreement between you and the Company. The Options will be immediately exercisable in whole or in part subject to the Company’s right to repurchase, at
the lower of (i) the original purchase price or (ii) the then fair market value of the Company’s Common Stock , the portion of shares that is unvested in the event your service with the Company terminates before your shares are fully
vested. 
 (b) In addition, the option granted to you on July 14, 2006 to purchase 300,000 shares of the Company’s Common
Stock will remain outstanding and continue to vest in accordance with the terms of the Stock Option Agreement between you and the Company (the “Existing Option Shares”). 
 (c) In the event that within twelve (12) months following a Change in Control, the Company terminates your employment without Cause (as defined
below) or you resign under circumstances that constitute a Constructive Termination (as defined below) (a “Change in Control Termination”), any remaining unvested portion of all stock options held by you, including the New Option Shares
and the Existing Option Shares, shall have the vesting accelerated such that all options are fully vested and exercisable as of the date of the Change in Control Termination (the 








 
“Acceleration”). Your receipt of the Acceleration is contingent upon your signing a general release of claims with respect to the Company or its
successor and related parties within 60 days of such employment termination. 
 6. Benefits. 
 (a) Insurance Benefits. The Company will provide you with the opportunity to participate in the standard benefits plans currently available
to other Company employees, subject to any eligibility requirements imposed by such plans. 
 (b) Vacation; Sick Leave. You
will be entitled to paid time off according to the Company’s standard policies. 
 7. Relocation Assistance. The Company
agrees to provide assistance with your relocation to Seattle as follows: The Company will reimburse you for the reasonable cost of packing, transportation, and unpacking of your household goods and one (1) automobile provided that you agree to
provide documentation to support any such costs in accordance with the Company’s generally applicable policies. In addition, the Company agrees to pay you $10,000 to cover travel and incidental expenses related to your relocation. The Company
will withhold from all such payments any amounts that are required by law (such as for federal income taxes, FICA and unemployment insurance) and any amounts received by you for relocation expense reimbursement will be reported as taxable income to
you in the year received as required by applicable tax law, except to the extent such amounts are excludable from adjusted gross income under applicable tax law. 
 8. Separation Benefits. You will be entitled to receive separation benefits upon termination of employment only as set forth in this Paragraph 8; provided, however, that in the event you are
entitled to any severance pay under a Company-sponsored severance pay plan, any such severance pay to which you are entitled under such severance pay plan shall reduce the amount of severance pay to which you are entitled pursuant to this Paragraph
8. In all cases, upon termination of employment you will receive payment for all salary and unused vacation accrued as of the date of your termination of employment, and your benefits will be continued under the Company’s then existing
benefit plans and policies in accordance with such plans and policies in effect on the date of termination and in accordance with applicable law. 
 (a) Voluntary Resignation. If you voluntarily elect to terminate your employment with the Company, you will not be entitled to any severance benefits. 
 (b) Termination for Cause, Disability or Death. If the Company or its successor terminates your employment for Cause, as defined below, or
if your employment is terminated on account of your disability or death, then you will not be entitled to receive any separation benefits. 
 (c) Involuntary Termination. If your employment is terminated by the Company or its successor other than for Cause, as defined below, and other than on account of your death or disability, or if you resign under circumstances
that constitute a Constructive 








 
Termination, as defined below, provided you sign a general release of claims with respect to the Company or its successor and related parties within 60 days
of such employment termination, you will receive the following separation benefits: (i) continued payment of your Base Salary for a period of six (6) months following the date of termination of services, commencing on the payroll period
following the effective date of the general release executed by you and (ii) reimbursement for the premium cost for continued health insurance coverage (including medical and dental) for you and your eligible dependents to the extent provided
under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for up to six (6) months following the date of termination of your employment, ending at such earlier time as you or your dependents cease to be eligible for
COBRA continuation coverage under the Company’s health insurance plan. 
 9. Definitions. The following definitions shall
apply hereunder: 
 (i) Cause. For purposes of this Agreement, “Cause” for your termination will exist at any
time after the happening of one or more of the following events that has caused or is reasonably expected to result in material injury to the Company: 
 (1) A reasonable and good faith determination by the Board of Directors that you have willfully failed substantially to perform your duties and responsibilities to the Company, provided that such determination is
preceded by a written demand for substantial performance delivered to you by the Board of Directors specifically identifying the manner in which it believes that you have not substantially performed your duties or responsibilities, identifying the
measures that will constitute an acceptable cure and providing a reasonable period (not less than twenty (20) days) for you to cure such failure (it being understood that neither bad judgment nor mere negligence nor any act or omission
reasonably believed by you to have been in, or not opposed to, the interests of the Company, shall constitute a substantial failure to perform your duties or responsibilities); 
 (2) Commission of any act of fraud, embezzlement, dishonesty, deliberate violation of a Company policy or any other willful misconduct; 
 (3) Unauthorized use or disclosure of any proprietary information or trade secrets of the Company or any other party to whom you owe an obligation of
nondisclosure as a result of your relationship with the Company; or 
 (4) Willful breach of any of your other obligations under any written
agreement or covenant with the Company. 
 (ii) Constructive Termination. For purposes of this Agreement,
“Constructive Termination” shall be deemed to occur if you resign within 30 days following (A) a material reduction in your job responsibilities or change in title; (B) relocation by the Company or successor thereto of
your work site to a facility or location more than 50 miles from your principal work site for the Company immediately prior to the relocation; or (C) a reduction in your then-current base salary by at least 15%, provided that an
across-the-board reduction in the salary level of all other employees or consultants in positions similar to your position by the same percentage amount as part of a general salary level reduction shall not constitute such a salary reduction.








 (iii) Change in Control. For purposes of this Agreement, “Change of
Control” shall mean a sale of all or substantially all of the Company’s assets, or any merger, consolidation or other transaction of the Company with or into another corporation, entity or person, other than a transaction in which the
holders of at least a majority of the voting securities of the Company outstanding immediately prior to such transaction continue to hold (either by the voting securities remaining outstanding or by their being converted into voting securities of
the surviving entity) at least thirty-three percent (33%) of the total voting power represented by the voting securities of the Company, or such surviving entity, outstanding immediately after such transaction and you continue to serve as Chief
Financial Officer of the Company or such surviving entity. 
 10. Confidential Information and Invention Assignment Agreement.
Your acceptance of this offer and commencement of employment with the Company is contingent upon the execution, and delivery to an officer of the Company, of the Company’s Proprietary Information and Inventions Agreement, a copy of which is
enclosed for your review and execution (the “Confidentiality Agreement”), prior to or on your Start Date. 
 11.
At-Will Employment. Your employment with the Company will be on an “at will” basis, meaning that either you or the Company may terminate your employment at any time for any reason or no reason, without further obligation or
liability beyond what is provided for in this Agreement. 
 12. No Conflicting Obligations. You understand and agree that by
accepting this offer of employment, you represent to the Company that your performance will not breach any other agreement to which you are a party and that you have not, and will not during the term of your employment with the Company, enter into
any oral or written agreement in conflict with any of the provisions of this Agreement or the Company’s policies. You are not to bring with you to the Company, or use or disclose to any person associated with the Company, any confidential or
proprietary information belonging to any former employer or other person or entity with respect to which you owe an obligation of confidentiality under any agreement or otherwise. The Company does not need and will not use such information and we
will assist you in any way possible to preserve and protect the confidentiality of proprietary information belonging to third parties. Also, we expect you to abide by any obligations to refrain from soliciting any person employed by or otherwise
associated with any former employer and suggest that you refrain from having any contact with such persons until such time as any non-solicitation obligation expires. 
 13. Entire Agreement. This Agreement, together with the Confidentiality Agreement, sets forth the entire agreement and understanding between you and the Company relating to your employment and
supersedes all prior agreements and discussions between us. This Agreement may not be modified or amended except by a written agreement, signed by an officer of the Company. This Agreement will be governed by the laws of the State of Washington
without regard to its conflict of laws provision. 







 We are all delighted to be able to extend you this offer and look forward to working with you. To
indicate your acceptance of the Company’s offer, please sign and date this letter in the space provided below and return it to me, along with a signed and dated copy of the Confidentiality Agreement. 
  

									
	Very truly yours,	 		 		 	ACCEPTED AND AGREED:
				
	PAR3 COMMUNICATIONS, INC.	 		 		 	JOHN FLAVIO
					
	By:	 	 /s/ Nicolas Tiliacos
	 		 		 	 /s/ John Flavio

		 	Nicolas Tiliacos	 		 		 	Signature
		 	Chief Executive Officer	 		 		 	February 21, 2007
		 		 		 		 	Date