Exhibit 10.9


 


 


ORIGINAL


 


EMPLOYMENT
AGREEMENT


 


This Employment Agreement (the “Employment Agreement”) is made
this 1st day of January, 2004 by and between Michael L. Ahlin (the “Employee”)
and Impact Diagnostics, Inc., a Utah corporation (the “Company”).


 


1.                                       Employment and Service on the Board of
Directors.


 


Company hereby agrees to employ the Employee as the Company’s Chairman
of the Board, and/or; Chief Executive Officer, and/or; President, and/or; Chief
Operating Officer, to perform such specific duties and have such
responsibilities as the board of directors of the Company (the “Board of
Directors”) may from time to time establish. The Employee hereby accepts
employment by the Company as Chairman of the Board, and/or; Chief Executive
Officer, and/or; President, and/or; Chief Operating Officer, subject to the
terms and conditions hereof, and agrees to devote the majority of his business
time and attention to his duties hereunder, to the best of his abilities.
Except as otherwise provided by paragraph 4(b) of this Employment Agreement,
while the Employee is employed by the Company, the Company shall nominate the
Employee to be elected as a member of the Board of Directors.


 


2.                                       Term of Employment; Certain Definitions.


 


(a)                                  The term of the Employee’s employment
pursuant to this Employment Agreement shall commence as of the Closing Date and
shall terminate upon the earlier of (i) termination pursuant to paragraph 6
hereof or (ii) the third anniversary of the Closing Date; provided that the term of this Employment
Agreement shall be automatically renewed for successive three (3) year periods
until either the Employee or the Company gives the other notice of nonrenewal
at least ninety (90) days prior to the expiration of the relevant term of
employment.


 


(b)                                 “Post-Employment Period” means the
period commencing on the date of the Employee’s termination of employment and
ending on the earlier of the first anniversary of such termination of
employment or the expiration of the term of this Employment Agreement.


 


(c)                                  “Prior Year Bonus” means the amount of
any bonus earned by the Employee with respect to services rendered during the
prior fiscal year of the Company, regardless of when such bonus is paid.


 


3.                                       Compensation, Benefits and Expenses.


 


(a)                                  During the term of the Employee’s employment
pursuant to this Employment Agreement, the Employee shall be paid a base annual
salary of $144,000 (the “Base Pay”). Payment will be made on the
regularly scheduled pay dates of the Company, subject to all appropriate
withholdings or other deductions required by law or by the Company’s
established policies applicable to all the employees of the Company. The Board
of Directors may increase the Employee’s Base Pay at the Company’s sole
discretion, but shall not reduce the Base Pay below the rate established by
this Employment Agreement (including any increases in the rate of Base Pay


 

















 


approved
by the Board of Directors after the Effective Time), without the Employee’s
written consent.


 


(b)                                 In addition to any other compensation payable
to the Employee pursuant to this Employment Agreement, during the term of the
Employee’s employment pursuant to this Employment Agreement, the Employee may
be paid an annual bonus as determined by and within the sole discretion of
board of directors of the Company.


 


(c)                                  In addition to compensation payable to the
Employee as described above, the Employee shall be entitled to participate in
all the employee benefit plans or programs of the Company as are available to
management employees of the Company generally and such other benefit plans or
programs as may be specified by the Board of Directors, including any stock
options that may be granted by the board of directors of the Company (“Employee
Benefits”), during the term of the Employment Agreement.


 


(d)                                 On a timely basis, the Company shall
reimburse the Employee for such reasonable out-of-pocket expenses as the
Employee may incur for and on behalf of the furtherance of the Company’s
business in accordance with the Company’s expense reimbursement policy.


 


(e)                                  Employee to be allowed full use of office
facilities, equipment, overhead, phones, computers, administrative assistance,
etc. for various needs aside from company work.


 


4.                                    Covenants of the Employee.


 


(a)                                 The Employee agrees with the Company that,
while employed by the Company, the Employee shall not directly or indirectly,
whether as a proprietor, partner, joint venturer, Company, agent, employee,
consultant, officer or beneficial or record owner of more than one percent of
the stock of any corporation or association of any nature, engage in any
business which is competitive to the business conducted by the Company, the
Company or any of the Company’s subsidiaries or affiliates (the Company, such
subsidiaries and affiliates being collectively referred to as the “Companies”)
in any geographic area which the Companies have engaged or will engage during
such period (including, without limitation, any area in which any customer of
the Companies may be located).


 


(b)                                The Employee agrees with the Company that at
no time will the Employee directly or indirectly divulge to any person, entity
or other organization or appropriate for the Employee’s own use or for the use
of others any trade secrets or information deemed to be confidential by the
Companies (“Confidential Information”) relating to the assets,
intellectural property, liabilities, employees, goodwill, business or affairs
of the Companies, including, without limitation, any information concerning
past, present or prospective customers, manufacturing processes, research and
development information or data; testing or marketing data, or other
confidential information used by, or useful to, the Companies and known
(whether or not known with the knowledge and permission of the Companies and
whether or not at any time prior to the Closing Date developed, devised, or
otherwise created in whole or in part by the efforts of the Employee) to the
Employee by reason of his employment by, shareholdings in or other association


 

















 


with
the Companies, except as required by the Employee for the purpose of the
business of the Companies. The Employee will hold on to all copies and extracts
of any written confidential information acquired or developed by him during his
employment for the sole benefit of the Companies and their successors and
assigns. Except as necessary
to perform the Employee’s duties hereunder, the Employee further agrees that he
will not remove or take from the Companies’ premises (or if previously removed
or taken, he will, at the Company’s request, promptly return) any written
confidential information or any copies or extracts thereof. The Employee shall
promptly make all disclosures, execute all instruments and papers and perform
all acts reasonably necessary to vest and confirm in the Companies, fully and
completely, all rights created or contemplated by this paragraph 4(b).


 


(c)                                  In the event the Employee breaches this
Employment Agreement (including, without limitation, by terminating his
employment without Good Reason (as hereinafter defined)) or if the Employee’s
employment is terminated without Cause (as hereinafter defined), the Employee
separately agrees, being fully aware that the performance of this Employment
Agreement is important to preserve the present value of the property and
business of the Companies, that for a period of twelve (12) calendar months
following such termination (the “Restricted Period”), that the Employee
shall not directly or indirectly engage in any business, whether as proprietor,
partner, joint venturer, Company, agent, employee, consultant, officer or
beneficial or record owner of more than one percent of the stock of any
corporation or association of any nature which is competitive to the business
conducted by the Companies in the geographical service area in which the Companies
have engaged or will engage during such period (including, without limitation,
any area in which any such customer of the Companies may be located).


 


(d)                                 As a separate and independent covenant, the
Employee agrees with the Company that, for so long as the Employee is employed
by the Company and for the Restricted Period, he will not in any way, directly
or indirectly, for the purpose of conducting or engaging in any competitive
business with the Companies, call upon, solicit, advise or otherwise do, or
attempt to do, business with any person who is, or was, during the then most
recent 12-month period, a customer of any of the Companies or solicit, induce,
hire, attempt to hire, interfere with or attempt to interfere with any person
who is, or was during the then most recent 12-month period, an employee,
officer, representative or agent of the Companies.


 


(e)                                  The Employee agrees that the breach by him of
any of the foregoing covenants is likely to result in immediate and irreparable
harm, directly or indirectly, to the Companies. The Employee, therefore,
consents and agrees that if the Employee violates any of such covenants, the
Companies shall be entitled, among and in addition to any other rights or
remedies available under this Employment Agreement or at law or in equity, to
temporary and permanent injunctive relief to, without bond or other security,
prevent the Employee from committing or continuing a breach of such covenants.
Such injunctive relief in any court shall be available to the Companies in lieu
of, or prior to or pending determination in, any arbitration proceeding.


 


(f)                                    It is the desire, intent and agreement of the
parties that the restrictions placed on the Employee by this paragraph 4 be
enforced to the fullest extent permissible under the law and public policy
applied by any jurisdiction in which enforcement is sought. Accordingly, if and
to the


 

















 


extent that any portion of this paragraph 4 shall be adjudicated to be
unenforceable, such portion shall be deemed amended to delete therefrom or to
reform the portion thus adjudicated to be invalid or unenforceable, such
deletion or reformation to apply only with respect to the operation of such
portion in the particular jurisdiction in which such adjudication is made.


 


(g)                                 Subject to paragraph 5(e), any controversy or
claim arising out of or relating to this Employment Agreement that cannot be
mutually resolved by the parties hereto shall first be submitted to non-binding
mediation in Salt Lake County, Utah in accordance with the rules then in effect
of the American Arbitration Association; provided
that the term of mediation shall be limited to three consecutive
days. Each party shall be responsible for their own attorney fees and fees and
costs incurred attributable to such mediation and each party shall share all
expenses of the mediator. If the parties cannot mutually resolve the
controversies or claims arising out of or relating to this Employment Agreement
after mediation, except with respect to the equitable relief contemplated under
paragraph 4(e), such controversies or claims arising out of or relating to this
Employment Agreement shall be settled by arbitration in Salt Lake County, Utah
in accordance with the rules then in effect of the American Arbitration
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction thereon. The prevailing party in any such arbitration will
be reimbursed by the other party hereto for its reasonable attorney fees and
fees and costs incurred attributable to such arbitration.


 


5.                                       Termination.


 


(a)                                  The Company shall have the right to terminate
the Employee’s employment at any time and for any reason. If the Employee is
terminated for Cause, neither the Company or the Company will have any
obligation to pay the Employee any Base Pay or other compensation, or to
provide any Employee Benefits subsequent to the date of the Employee’s
termination of employment (except as required by applicable law), including,
without limitation, Severance Benefits as defined in paragraph 5(c) hereof.
Termination for “Cause” shall mean termination of employment for any of
the following reasons:


 


(i)                                  the Employee entering a plea of no-contest
with respect to or being convicted by a court of competent and final
jurisdiction of any crime, whether or not involving the Company, that
constitutes a felony in the jurisdiction involved;


 


(ii)       (A)     the
Employee committing any act of fraud, misappropriation, embezzlement, unethical
business conduct or other act of dishonesty against the Company, the Company or
the Company’s subsidiaries, or (B) the Employee breaching a duty of loyalty
owed to the Company, or any of the Companies, or, as a result of his gross
negligence, breaching a duty of are owed to the Company, or any of the
Companies;


 


(iii)                                 the Employee breaching any of his obligations
under the Employment Agreement or failing or refusing to perform any of his
duties as required of him as an employee of the Company, provided, however,
that the Company may not terminate the Employee’s employment for


 

















 


Cause pursuant to this subparagraph (iii) unless the Company first
gives the Employee notice of its intention to terminate and of the grounds for
such termination, and the Employee has not, within 20 days following receipt of
such notice, cured such Cause, provided that the Employee shall not be entitled
to cure such Cause pursuant to the immediately preceding clause of this
subparagraph (iii) if the breach, failure or refusal giving rise to such Cause
was willfully or intentionally committed by the Company; or


 


(iv)                                any other misconduct by the Employee that is
materially injurious to the financial condition or business reputation of the
Company, the Company or the Companies.


 


(b)                                 Unless otherwise terminated earlier pursuant
to the terms of this Employment Agreement, the Employee’s employment under this
Employment Agreement will terminate upon the Employee’s death and may be
terminated by the Company or the Employee upon giving not less than thirty days
written notice to the other in the event that the Employee, because of physical
or mental disability or incapacity, is unable to perform (or, in the opinion of
the physician or physicians selected pursuant to the proecedures set forth
below, is reasonably expected to be unable to perform) the Employee’s duties
hereunder for an aggregate of one hundred eighty working days during any
twelve-month period (“Disabled”). All questions arising with respect to whether
the Employee is Disabled shall be determined by a reputable physician mutually
selected by the Company and the Employee at the time such question arise. If
the Company and the Employee cannot agree upon the physician within a period of
seven days after such question arises, then the Company and the Employee shall
each select a physician who shall each make a determination as to whether the
Employee is Disabled. Is such physicians disagree as to whether the Employee is
Disabled, such physicians shall be asked to agree on the selection of another
physician to makes such determination. The determination of the physician or
physicians selected pursuant to the above provisions of this paragraph 5(b) as
to such matters shall be final and binding upon the parties hereto.


 


c)                                    The Employee may terminate his employment for
Good Reason. For purposes of this paragraph 6, “Good Reason” shall mean the
following:


 


(i)                                     the Company failing to pay any portion of the
Employee’s material compensation due and payable in connection with the
Employee’s employment; provided, however, that the Employee may not


 

















 


terminate his employment for Good Reason pursuant to this subparagraph
(i) unless the Employee first gives the Company written notice of his intention
to terminate and of the grounds for such termination, and (ii) the Company has
not, within 20 days of receipt of such notice, cured such Good Reason; or


 


(ii)                                 the Company discharging the Employee without
Cause; or


 


(iii)                              the merger of the Company with, or the sale
of the outstanding voting securities of the Company in which the stockholders
of the Company immediately prior to such transaction do not immediately after
such transaction own directly or indirectly more than 50% of the combined
voting power of the Company in substantially the same proportions as their
ownership immediately prior to such transaction of the voting securities of the
Company, or the sale of substantially all of the assets of the Company to, and
person, corporation, or other business entity that is not affiliated with or
controlled by the Company.


 


The Company shall provide the Employee with Severance Benefits upon (i)
the termination by the Employee of his employment for Good Reason or (ii) the
termination of the Employee’s employment by the Company without Cause. “Severance
Benefits” means (i) prompt payment of any unpaid Base Pay earned through
the date of the Employee’s termination; (ii) a payment equal to thirty six
months of the Base Pay; and (iii) providing the Employee and his eligible
dependents with medical benefits during the Post-Employment Period (to the
extent such dependents participated in the Company’s medical plans immediately
prior to the Post-Employment Period), or such longer time to the extent
required by law, upon the same terms and conditions applicable to similarly
situated employees who are employed by the Company.


 


6.                                       Assignment and Succession.


 


(a)                                  The services to be rendered and obligations
to be performed by the Employee under this Employment Agreement are special and
unique, and all such services and obligations and all of the Employee’s rights
under this Employment Agreement are personal to the Employee and shall not be
assignable or transferable.   In the
event of the Employee’s death, however, the Employee’s personal representative
shall be entitled to receive any and all payments then due under this
Employment Agreement.


 


(b)                              This Employment Agreement shall inure to the benefit of and be binding
upon and enforceable by the Company and the Employee and their respective
successors, permitted


 

















 


assigns,
heirs, legal representatives, executors, and administrators. If the Company
shall be merged into or consolidated with another entity, the provisions of the
Employment Agreement shall be binding upon and inure to the benefit of the
entity surviving such merger or resulting from such consolidation. The Company
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to expressly assume and agree to perform this
Employment Agreement in the same manner that the Company would be required to
perform it if no such succession had taken place. The provisions of this
paragraph 6(b) shall continue to apply to each subsequent Company of the
Employee hereunder in the event of any subsequent merger, consolidation, or
transfer of assets of such subsequent Company.


 


7.                                       Notices.


 


All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by overnight courier or
telegram or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this paragraph 7):


 


if to the Company or the Company:


 


Impact Diagnostics, Inc.


5792 South 900 East, Suite B


Salt Lake City, UT 84121


 


Attention: CFO


 


if to the Employee:


 


Mark J. Rosenfeld


1075 Skyler Drive


Draper, Utah 84020


 


with a copy to:


 


James C. Lewis, Esq.


10 West 100 South #615


Salt Lake City, UT 84101


 


8.                                       Waiver of Breach.


 


(a)                                  The waiver by the Company or the Employee of
a breach of any provision of this Employment Agreement shall not operate or be
construed as a waiver by such parry of any subsequent breach.


 

















 


(b)                                 The parties hereto recognize that the laws
and public policies of various jurisdictions may differ as to the validity and
enforceability of covenants similar to those set forth herein. It is the
intention of the parties that the provisions hereof be enforced to the fullest
extent permissible under the laws and policies of each jurisdiction in which
enforcement may be sought, and that the unenforceability (or the modification
to conform to such laws or policies) of any provisions hereof shall not render
unenforceable, or impair, the remainder of the provisions hereof. Accordingly,
if at the time of enforcement of any provision hereof, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographic area reasonable under such circumstances will be
substituted for the stated period, scope or geographical area and that such
court shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and geographical area permitted by law.


 


9.                                       Amendment.


 


This Employment Agreement may be amended only by a written instrument
signed by all parties hereto.


 


10.                                 Governing Law; Jurisdiction and Service of
Process.


 


This Employment Agreement shall be governed by the laws of the State of
Utah applicable to contracts executed in and to be performed in that State.


 


11.                                 Partial Invalidity.


 


The invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provision.


 


12.                                 Entire Agreement.


 


All prior negotiations and agreements between the parties hereto with
respect to the matters contained herein are superseded by this Employment
Agreement, and there are no representations, warranties, understandings or
agreements other than those expressly set forth herein.


 


13.                                 Other Severance Benefits.


 


The Employee hereby agrees that in consideration for the payments to be
received under this Employment Agreement, the Employee waives any and all
rights to any payments or benefits under any other severance plans or any
similar arrangements of the Company, the Company or any of the Company’s
subsidiaries.


 

















 


14.                             Withholding.


 


The payment of any amount pursuant to this Employment Agreement shall
be subject to applicable withholding and payroll taxes, and such other
deductions as may be required under the Company’s or the Company’s employee
benefit plans, if any.


 


15.                                 Accrual.


 


All unpaid or underpaid
wages, benefits, etc. shall accrue and be payable to the employee upon
sufficient funding of the Company, upon termination with or without cause or
upon resignation.


 

















 


IN WITNESS WHEREOF, the Employee and the Company
have entered into this Employment Agreement as of the date set forth above.


 


 


	
   

  	
  EMPLOYEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Michael L. Ahlin

  	
   

  
	
   

  	
  Michael
  L. Ahlin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COMPANY:

  	
   

  
	
   

  	
  IMPACT
  DIAGNOSTICS, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael L. Ahlin

  	
   

  
	
   

  	
   

  	
  Name:
  Michael L. Ahlin

  	
   

  
	
   

  	
   

  	
  Title:
  Chairman of the Board

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mitchell T. Godfrey, [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Name:
  Mitchell T. Godfrey

  	
   

  
	
   

  	
   

  	
  Title:
  Treasurer

  	
   

  
	
  OPTIONS

  	
   

  	
   

  	
   

  



 


 


 

















 


 


 


 


 


 


Impact Diagnostics, Inc.


 


July 1, 2004


 


Michael L. Ahlin


5792 South 900
East, Suite B


Salt Lake City, UT
84121


 


Re:          Amendment
of Employment Agreement


 


Dear Michael:


 


Pursuant to Paragraph 9 of the January 1, 2004
Employment Agreement between you and 
Impact Diagnostics, Inc. (“IDI”) (the “Employment Agreement), and for
good and sufficient consideration, the receipt of which is hereby acknowledged,
the Employment Agreement is hereby amended as follows:


 


1.             IDI
agrees to continue to employ you in a full-time capacity, at your current
compensation rate and with the same benefits, until such time as you and the
Board of Directors agree otherwise. 
Your employment will be at-will. 
This means that either you or IDI may terminate your employment at any
time, for any reason or no reason.


 


2.             All
other provisions of the Employment Agreement, and any provisions contrary to
the terms of this letter of Amendment, are hereby revoked and are considered
null and void.


 


3.             Your
employment by IDI, and this Amendment to the Employment Agreement, shall be
governed by the laws of the State of Utah.


 


4.             This
Amendment to the Employment Agreement contains the entire agreement between the
parties and completely supersedes any prior written or oral agreements or
representations concerning the subject matter hereof.   Any oral representation, modification or other writing
concerning this Amendment or the Employment Agreement shall be of no force or
effect.  This Amendment may be modified
only by a writing signed by the parties hereto.


 


5.             This
Amendment is effective as of the date of your execution of this letter.  By signing this letter you agree to the
terms set forth above, and acknowledge that: a) you have read and agreed to the
terms of this letter voluntarily; b) you have had the opportunity to consult
with


 

















 


the attorney of
your choice regarding its terms; and c) no promise or inducement has been made
to you other than the terms set forth herein.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  Stan Yakatan

  
	
   

  	
  Chief Executive
  Officer

  
	
   

  	
   

  
	
  Agreed to:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Michael L. Ahlin

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  dated