**EXHIBIT10.15**

**EMPLOYMENT AGREEMENT**

 

 

**THIS AGREEMENT,** dated effective as of June1, 2005, is entered into by and between Ciprico Inc., a Delaware corporation(the “Company”) and Monte S. Johnson, a Minnesota resident (“Executive”).

 

**WHEREAS**, the Company desires to employ Executiveupon and subject to the terms and conditions set forth in this agreement (“Agreement”),and Executive desires to render services for the Company on such terms andconditions.

 

**NOW, THEREFORE**, in consideration of thepremises and the respective undertakings of the Company and Executive set forthbelow, the Company and Executive agree as follows:

 

**1.             Employment.**  The Company hereby employs Executive as VicePresident — Finance and Chief Financial Officer and other such positions of divisionsor subsidiaries as assigned by the Board of Directors, and Executive acceptssuch employment and agrees to perform services for the Company, for the periodand upon the other terms and conditions set forth in this Agreement.

 

**2.             Term ofEmployment**.  The term ofExecutive’s employment hereunder shall commence on the effective date hereofand shall continue for an initial term of two (2) years (“Initial Term”).  Prior to and within ninety (90) days of adate that is one year prior to the expiration of the Initial Term, the ChiefExecutive Officer shall review Executive’s goals and objectives and notifyExecutive in writing whether the Agreement will be extended for an additionalone year beyond the scheduled termination date or notification date, whicheveris later, or terminate as scheduled.  Ifthe Agreement is renewed upon expiration of the Initial Term, the Company shallnotify Executive in writing whether the Agreement will be renewed foradditional one year, or terminate as scheduled, ninety (90) days prior to theexpiration date of then extension term. If Executive chooses not to extend the Agreement, Executive must notifythe Company in writing within thirty (30) days of Executive’s receipt of theextension.  Notwithstanding anything tothe contrary in this Agreement, this Agreement may be terminated as provided inSection 8 below.  The Initial Term andadditional terms are collectively referred to as “Term of Employment”).

 

**3.             Positionand Duties**.

 

3.01         Service with Company. During his Term of Employment, Executive agrees to perform suchreasonable employment duties,****consistentwith the terms of this Agreement and the offices held by Executive as providedin section 1 above, as the Board of Directors of the Company shall assign tohim from time to time.  Such duties andemployment responsibilities **is set forth inExhibit A and**shall be performed in accordance withthe Company’s rules, regulations and instructions now in force or which may beadopted by the Company in the future.

 

 

 

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3.02         Performance of Duties.  During his Term of Employment, the Executiveagrees to serve the Company to the best of his ability.  The Executive shall have active involvementand be fully committed to the business and affairs of the Company.  Executive hereby confirms that he is under nocontractual commitments inconsistent with his obligations set forth in thisAgreement.  During his Term ofEmployment, Executive shall not render or perform services for any  other corporation, firm, entity or personthat is in competition with the business of the Company.

 

3.03         Noncompetition. In consideration of the payments to be made to the Executive under thisAgreement as provided in Sections 4.05 and 8.02 which the Executiveacknowledges constitute new and valuable consideration, the Executive herebycovenants and agrees that during the Term of Employment or any successoremployment relationship between Executive and the Company, and for a period oftwelve (12) months following the termination of Executive’s employment for anyreason (the “Restricted Period”), the Executive shall not, directly orindirectly, own, manage, operate, control, act as an advisor or consultant to,or participate in, the ownership, management, operation, or control of anybusiness involving the digital media storage device and related services in anygeographic market served by the Company during the Restricted Period; provided,however, that the foregoing shall not prevent the Executive from owning notmore than two percent (2%) interest in any entity engaged in such a competingbusiness whose securities are traded on any securities exchange or in theover-the-counter markets.

 

3.04         Nonsolicitation. In consideration of the payments to be made to the Executive under thisAgreement as provided in Sections 4.05 and 8.02 which the Executiveacknowledges constitute new and valuable consideration, the Executive herebycovenants and agrees that during the Term of Employment or any successoremployment relationship between Executive and the Company, and for a period oftwelve (12) months following the termination of the employment relationshipbetween Executive and the Company, Executive agrees that he will not solicit oraccept, either directly or indirectly, as an individual or through apartnership, corporation, or other entity, any employee of the Company orconsultant under contract with the Company for employment or any otherarrangement for compensation to perform services.

 

**4.             Compensation**.

 

4.01         Base Salary   As base compensation for all services to berendered by the Executive under this Agreement during the Term of Employment,the Company shall pay to Executive a minimum monthly base salary of $11,500 permonth for the first four (4) months and $12,333 per month for the remainingtwenty (20) months of the Initial Term, which salary shall be paid inaccordance with the Company’s normal payroll procedures and policies and bereviewed annually by the Board of Directors.

 

4.02         Stock Options. Executive shall be granted, at signing, an option to purchase 25,000shares of the Company’s common stock, par value $.01 per share, pursuant to theCompany’s Qualified Stock Option Plan, at an exercise price equal to 100% ofthe closing sale price for such common stock on the day of issuance consistentwith past practices.  All such stockoptions shall be granted under, and pursuant to all terms and conditions of,the Qualified 

 

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Stock Option Plan.  The Board may consider additional grantsannually.  These stock options will vestin accordance with the terms of the Qualified Stock Option Plan.

 

4.03         Benefits. Executive shall be eligible to participate such company-sponsoredbenefits as are provided to executive employees of the Company, subject to theterms and conditions of the applicable policies and/or plans.

 

4.04         Expenses.  TheCompany will pay or reimburse Executive for all reasonable and necessaryout-of-pocket expenses incurred by him in the performance of his duties underthis Agreement including monthly cost of a cell phone, subject to thepresentment of appropriate vouchers in accordance with the Company’s normalpolicies for expense verification. Executive shall be entitled to reimbursement for educational expensesapproved by the Board of Directors.

 

4.05         Consulting Arrangement.  The Company will pay MSJ & Associates,LLC, an affiliate of Executive, $1,000 per month for the first four (4) monthsof the Initial Term and $1,250 per month for the remaining twenty (20) monthsof the Initial Term for strategic planning services.

 

4.06         Development. Executive will receive an annual written performance review from theChief Executive Officer and the Company will pay for any developmental,learning or training experiences recommended by the Chief Executive Officer.

 

4.07         Bonuses. Executive shall be eligible to participate in the Company’s short-termand long-term management bonuses programs as defined by management and approvedby the Board.

 

**5.             ConfidentialInformation**.  Except aspermitted or directed by the Company’s Board of Directors, during the Term ofEmployment or at any time thereafter, Executive shall not divulge, furnish ormake accessible to anyone or use in any way (other than in the ordinary courseof the business of the Company) any confidential or secret knowledge orinformation of the Company which Executive has acquired or become acquaintedwith or will acquire or become acquainted with prior to the termination of theTerm of Employment, whether developed by himself or by others, concerning anytrade secrets, confidential or secret designs, processes, formulae, plans,devices or material (whether or not patented or patentable) directly orindirectly useful in any aspect of the business of the Company, any customer orsupplier lists of the Company, any confidential or secret development orresearch work of the Company, or any other confidential information or secretaspects of the business of the Company. Executive acknowledges that the above-described knowledge or informationconstitutes a unique and valuable asset of the Company and represents asubstantial investment of time and expense by the Company and its predecessors,that any disclosure or other use of such knowledge or information other thanfor the sole benefit of the Company would be wrongful and would causeirreparable harm to the Company.  Bothduring and after the Term of Employment, Executive will refrain from any act oromissions that would reduce the value of such knowledge or information to theCompany.  The foregoing obligations ofconfidentiality, however, shall not 

 

 

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apply to any knowledge or information whichis now published or which subsequently becomes generally publicly known in theform in which it was obtained from the Company, other than as a direct orindirect result of the breach of this Agreement by Executive.  It is hereby acknowledged that it is not theintention of the foregoing provisions to preclude the Executive from securinggainful employment with subsequent employers who are not competitors of theCompany or who would otherwise have no reasonable commercial use of the abovedescribed knowledge or information, but only to protect the Company’sconfidential and proprietary information or knowledge.

 

                **6.             Ventures**.  If, during the Term of Employment, Executiveis engaged in or associated with the planning or implementing of any project,program or venture involving the Company and a third party or parties, allrights in such project, program or venture shall belong to the Company.  Except as formally approved by the Company’sBoard of Directors, Executive shall not be entitled to any interest in suchproject, program or venture or to any commission, finder’s fee or othercompensation in connection therewith other than the salary or othercompensation to be paid to Executive as provided in this Agreement.

 

                **7.             Patent,Copyrights and Related Matters**.

 

                                7.01         Disclosure and Assignment.  Executive will promptly disclose in writingto the Company complete information concerning each and every invention,discovery, improvement, device, design, apparatus, practice, process, method orproduct, whether patentable or not, made, developed, perfected, devised,conceived or first reduced to practice by Executive, either solely or in collaborationwith others, during the Term of Employment, or within six (6) monthsthereafter, whether or not during regular working hours, relating to any phaseof the business of the Company conducted at such time (hereinafter referred toas “Developments”).  Executive, to theextent that he has the legal right to do so, hereby assigns and agrees toassign to the Company and all of the Executive’s right, title and interest inand to any and all of such Developments.

 

                                7.02         Future Developments.  As to any future Developments made byExecutive and which are first conceived or reduced to practice during the Termof Employment, or within six (6) months thereafter, but which are claimed forany reason to belong to an entity or person other than the Company, Executivewill promptly disclose the same in writing to the Company and shall notdisclose the same to others if the Company, within sixty (60) days thereafter,shall claim ownership of such Development under the terms of this Agreement.  If the Company makes such claim, Executiveagrees that, insofar as the rights (if any) of Executive are involved, it willbe settled by arbitration in accordance with the rules of the AmericanArbitration Association.  The locale ofthe arbitration shall be Minneapolis, Minnesota (or other locale convenient tothe Company’s principal executive offices). If the Company makes no such claim, Executive hereby acknowledges thatthe Company has made no promise to receive and hold in confidence any suchinformation disclosed by Executive.

 

                                7.03         Limitation on Section 7.01 and 7.02.  The provisions of section 7.01 and 7.02 shallnot apply to any Development meeting the following conditions:

 

 

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(a)                                  suchDevelopment was developed entirely on Executive’s own time;

 

(b)                                 suchDevelopment was made without the use of any Company equipment, supplies,facility or trade secret information; and

 

(c)                                  suchDevelopment does not relate (i) directly to the business of the Company, or(ii) of the Company’s actual or demonstrably anticipated research ordevelopment.

 

                                7.04         Executive Assistance.  Executive agrees to assist Company inobtaining patents or copyrights on any Developments assigned to the Companythat Company, in its sole discretion, seeks to patent or copyright.  Executive also agrees to sign all documentsand do all things deemed necessary by Company to obtain and/or maintain suchpatents or copyrights, to assign them to Company, and to protect them againstinfringement.  The obligations of thisSection 7 are continuing and shall survive the termination of Executive’semployment with Company.

 

                                7.05         Appointment of Agent.  Executive irrevocably appoints the Company toact as Executive’s agent and attorney in fact to perform all acts necessary toobtain/or maintain patents or copyrights to any Developments assigned byExecutive to Company under this Agreement if (i) Executive refuses to performthose acts or (ii) is unavailable, within the meaning of the United Statespatent and copyright laws.  Executiveacknowledges that the grant of the foregoing power of attorney is coupled withan interest and shall survive the death or disability of Executive and thetermination of Executive’s employment with Company.

 

                                7.06         Notice and Acknowledgment.  Executive acknowledges that this section ofthis Agreement does not apply to a Development for which there was noequipment, supplies, facilities or trade secret information of the Company usedand which was developed entirely on Executive’s own time, and which does notrelate directly to the business of the Company or the Company’s actual ordemonstrably anticipated research or development, or which does not result fromany work performed by Executive for the Company.

 

                **8.             Termination.**

 

**                               **8.01         Grounds for Termination.  Notwithstanding any other provision of thisAgreement to the contrary, this Agreement will terminate prior to the end ofthe Term of Employment under the following circumstances:

 

(a)                                  By mutualagreement of Executive and the Company;

 

(b)                                 Immediatelyupon the death of Executive;

 

(c)                                  Immediatelyupon the bankruptcy or insolvency of the Company;

 

 

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(d)                                 Immediately, inthe event of (i) Executive’s personal dishonesty, willful misconduct, breach offiduciary duty, intentional failure to perform stated duties, willful violationof any laws (other than minor traffic violations or similar offenses), ormaterial breach of the policies or procedures of the Company; or

 

(e)                                  Upon Executive’sinability to perform the essential functions of his position due to physical ormental disability, with or without reasonable accommodation, as determined inthe good faith judgment of the Board of Directors, and such inability continuesfor a period consistent with Company policy as may otherwise be required byapplicable law.

 

Notwithstanding any termination of thisAgreement, Executive, in consideration of his employment hereunder to the dateof such termination, shall remain bound by the provisions of this Agreementwhich specifically relate to periods, activities or obligations upon orsubsequent to the termination of Executive’s employment.

 

                                8.02         Severance Payments.

 

(a)                                  The rights andobligations of the Company and Executive as to a termination following a Changeof Control (as defined in a Change of Control Agreement) are governed by aChange of Control Agreement between the Company and Executive dated effectiveas of June 1, 2005.  In the event of anyinconsistencies between this Agreement and the Change of Control Agreement, theChange of Control Agreement shall control.

 

(b)                                 If Executive’semployment is terminated by the Company other than pursuant to Section 8.01(d)or in connection with a Change of Control, the Company shall pay Executive asseverance pay an amount equal to the total compensation (base salary, targetbonus and consulting pay) paid to Executive during the 12-month periodimmediately preceding his termination or the total compensation for theremaining portion of the Initial Term, whichever is greater, payable at theCompany’s option in either a lump sum or in installments in accordance with theCompany’s standard payroll policies (beginning after the expiration of anyapplicable consideration and/or rescission periods), subject to requiredwithholding and deductions.  Anyseverance pay provided herein may, at Company’s discretion, be conditioned uponthe execution of a full and final release by the Executive of all claimsagainst the Company arising out of his employment and the termination thereof, theform of which will be provided by the Company.

 

 

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                                8.03         Surrender of Records and Property.  Upon termination of his employment with theCompany, Executive shall deliver promptly to the Company all records, manuals,books, blank forms, documents, letters, memoranda, notes, notebooks, reports,data, tables, calculations or copies thereof, which are the property of theCompany or which relate in any way to the business, products, information ofthe Company, including, but not limited to, all documents which in whole or inpart contain any trade secrets or confidential information of the Company,which in any of these cases are in his possession or under his control.  Provided, however, that Executive shall beentitled to retain items of sentimental value, copies of which shall beprovided to the Company at the request of the Company and at the Company’sexpense.

 

                **9.             Miscellaneous**.

 

                                9.01         Governing Law.  This Agreement is made under and shall begoverned by and construed in accordance with the laws of the State ofMinnesota.

 

                                9.02         Prior Agreements.  This Agreement, together with the Change ofControl Agreement, contain the entire Agreement of the parties relating to thesubject matter hereof and supersede all prior agreements and understandingswith respect to such subject matter, and the parties hereto have made noagreements, representations or warranties relating to the subject matter ofthis Agreement which are not set forth herein.

 

                                9.03         Withholding Taxes.  The Company **shall******withhold from all salary, bonus, severancepay or other benefits payable under this Agreement all federal, state, city orother taxes as shall be required pursuant to any law or governmental regulationor ruling.

 

                                9.04         Amendments.  No amendment or modification of thisAgreement shall be deemed effective unless made in writing and signed by theparties hereto.

 

                                9.05         No Waiver.  No term or condition of this Agreement shallbe deemed to have been waived, nor shall there be any estoppel to enforce anyprovisions of this Agreement except by a statement in writing signed by theparty by whom enforcement of the waiver or estoppel is sought.  Any written waiver shall not be deemed acontinuing waiver unless specifically stated, shall operate only as to thespecific term or condition waived and shall not constitute a waiver of suchterm or condition for the future or as to any act other than specificallywaived.

 

                                9.06         Severability.  To the extent any term or provision of thisAgreement shall be invalid or unenforceable, the term or provision shall beconsidered deleted herefrom and the remaining term and provision of theAgreement shall be unaffected and shall continue in full force and effect.  In furtherance and not in limitation of theforegoing, should the duration or geographical extent of, or businessactivities covered by, any provision of this Agreement be in excess of thatwhich is valid and enforceable under applicable law, then such provision shallbe construed to cover only that duration, extent or activities which mayvalidly and enforceably be covered. Executive acknowledges the uncertainty of the law in this respect andexpressly stipulates that this Agreement be given the construction whichrenders its provisions valid and 

 

 

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enforceable to the maximum extent (notexceeding its express terms) possible under applicable law.

 

                                9.07         Assignment.  This Agreement shall be binding upon andinure to the benefit of the Company’s successor or assigns.  This Agreement shall not be assignable, inwhole or in part, by Executive without prior written consent of the Company.

 

                                9.08         Injunctive Relief.  Executive agrees that it would be difficultto compensate the Company fully for damages for any violation of the provisionsof this Agreement, including without limitation the provisions of Sections 3,5, 6 and 7.  Accordingly, Executivespecifically agrees that the Company shall be entitled to temporary andpermanent injunctive relief in any court of competent jurisdiction, to enforcethe provisions of this Agreement and that such relief may be granted withoutthe necessity of proving actual damages. This provision with respect to injunctive relief shall not, however,diminish the right of the Company to claim and recover damages in addition toinjunctive relief.

 

                                9.09         Survival.  The parties agree that sections 3, 5 and 7shall survive termination of this Agreement and term of Executive’s employmentfor any reason.

 

                                9.10         Blue Pencil Doctrine.  In the event that any provision of thisAgreement is held to be overbroad as written, such provision shall be deemedamended to narrow its application to the extent necessary to make the provisionenforceable according to applicable law and shall be enforced as amended.

 

                                9.11         Mandatory Arbitration.  In the event any dispute arises under thisAgreement, or as to the breach hereof, the parties shall discuss the dispute ina good faith effort to arrive at a mutual settlement.  If notwithstanding, such dispute cannot besettled, except for sections 9.08 (which the parties specifically acknowledgeand agree entitles the Company to, among other relief, injunction relief,relief in any court of competent jurisdiction if Executive breaches section 3,5, 6 and 7), such dispute shall be submitted to binding arbitration conductedin Minneapolis, Minnesota, in accordance with the then-current Commercial Rulesof the American Arbitration Association ) (“AAA”).  The costs and expenses of the arbitrationshall be paid by the party against whom the arbitrators render a decision, if adecision is rendered against a party; otherwise the costs and expenses shall beshared equally by Executive and the Company. The arbitrators shall have full power and authority to rule on anyquestion of law in the same manner as any judge of any court of competentjurisdiction, and the decision of the arbitrators shall be final and conclusiveupon the parties, and shall not be subject to any appeal or review if thearbitrators have followed the Commercial Rules of the AAA.  The arbitrators shall have full power to makeany award (including the award of equitable remedies) that shall under thecircumstances presented to them be deemed to be proper; provided that thearbitrators shall not have the power to award punitive damages or to limit,expand or otherwise modify the terms of this Agreement.  Judgment may be entered upon any awardrendered by the arbitrators in accordance with applicable law in any court ofcompetent jurisdiction.

 

 

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**IN WITNESSWHEREOF,**the parties have executed this Agreement effectiveas of the date and year first written above.

 
| ** ** | **CIPRICO  INC.**    |
|------------|----------------------|
|       |                 |   |
|       |                 |   |
|       | By:                  | /s/ James W. Hansen |
|       |                 | Its Chief Executive  Officer |
|       |                 |   |
|       |                 |   |
| ** ** | **EXECUTIVE**        |
|       |                 |   |
|       |                 |   |
|       | /s/ Monte S. Johnson |
|       |                 |   |

 

 

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**CHANGE OFCONTROL AGREEMENT**

** **
| Parties:        |   | Ciprico Inc.       |   | (“Company”)  |
|-----------------|--------|--------------------|--------|------------------------|
|            |   | 17400 Medina Road  |   |                   |
|            |   | Plymouth, MN 55447 |   |                   |
|            |   |               |   |                   |
|            |   | Monte S. Johnson   |   | (“Employee”) |
|            |   |               |   |                   |
| Effective Date: |   | June 1, 2005  |   |                   |

 

**RECITALS:**

 

1.             Employeehas been employed by Company since June 1, 2005 in various capacities, hasextensive knowledge and expertise relating to Company’s business and hascontributed to Company’s success.

 

2.             Theparties recognize that a “Change of Control” may materially change or diminishEmployee’s responsibilities and substantially frustrate Employee’s commitmentto the Company.

 

3.             Theparties further recognize that it is in the best interests of the Company andits stockholders to provide certain benefits payable upon a “Change of ControlTermination” to encourage Employee to continue in his position in the event ofa Change of Control, although no such Change of Control is now contemplated orforeseen.

 

4.             Theparties further desire to provide for certain benefits payable upon certaininvoluntary terminations of Employee’s employment.

 

**AGREEMENTS:**

 

In consideration of the mutual covenants setforth herein and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.             **Term of Agreement**.  The term of this Agreement shall commence onthe Effective Date and shall continue in effect until termination of Employee’semployment which does not constitute a Change of Control Termination; provided,however, that if a Change of Control of the Company shall occur during the termof this Agreement, this Agreement shall instead continue in effect for a periodof twelve (12) months following the date of such Change of Control.  Any rights and obligations accruing beforethe termination or expiration of this Agreement shall survive to the extentnecessary to enforce such rights and obligations.

 

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2.             **“Change of Control.”**  For purposes of this Agreement, “Change ofControl” shall mean any of the following events occurring after the date ofthis Agreement:

 

(a)           Amerger or consolidation to which the Company is a party if the individuals andentities who were shareholders of the Company immediately prior to theeffective date of such merger or consolidation have, immediately following theeffective date of such merger or consolidation, beneficial ownership (asdefined in Rule 13d-3 under the Securities Exchange Act of 1934) of lessthan fifty percent (50%) of the total combined voting power of all classes ofsecurities issued by the surviving corporation for the election of directors ofthe surviving corporation;

 

(b)           Theacquisition of direct or indirect beneficial ownership (as defined in Rule 13d-3under the Securities Exchange Act of 1934) of securities of the Company by anyperson or entity or by a group of associated persons or entities acting inconcert in one or a series of transactions, which causes the aggregatebeneficial ownership of such person, entity or group to equal or exceed twentypercent (20%) or more of the total combined voting power of all classes of theCompany’s then issued and outstanding securities;

 

(c)           Thesale of substantially all of the assets of the Company to any person or entitythat is not a wholly-owned subsidiary of the Company;

 

(d)           Theapproval by the stockholders of the Company of any plan or proposal for theliquidation of the Company;

 

(e)           Achange in the composition of the Board of the Company at any time during anyconsecutive twenty-four (24) month period such that the “Continuity Directors”no longer constitute at least a seventy percent (70%) majority of theBoard.  For purposes of this event, “ContinuityDirectors” means those members of the Board who were directors at the beginningof such consecutive twenty-four (24) month period or were elected by, or on thenomination or recommendation of, at least a two thirds (2/3) majority of thethen-existing Board of Directors; or

 

(f)            Theexecution by the Company of a letter of intent, an agreement in principle or adefinitive agreement relating to an event described in Section 2(a), 2(b),2(c), 2(d) or 2(e) that ultimately results in such a Change ofControl, or a tender or exchange offer or proxy contest is commenced thatultimately results in an event described in Section 2(b) or 2(e).

 

3.             **Termination**.  For purposes of this Agreement, “Change ofControl Termination” shall mean any of the following events occurring withintwelve (12) months after a change of control occurring during the term of thisAgreement.

 

(a)           Thetermination of Employee’s employment by the Company for any reason except GoodCause.  For purposes of this Agreement, “GoodCause” shall include, but not be limited to, the following:

 

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(i)            Employee’sconviction of or plea of guilty or *nolocontendere* to a felony resulting from conduct occurring on or afterthe date of the Change of Control;

 

(ii)           Employee’swillful and repeated failure to fulfill his employment duties with the Company;provided, however, that for purposes of this clause (ii), an act or failure toact by Employee shall not be “willful” unless it is done, or omitted to bedone, in bad faith and without any reasonable belief that Employee’s action oromission was in the best interests of the Company;

 

(iii)          Employee’sincurable breach of any material element of any proprietary or confidentialinformation agreement with the Company;

 

(iv)          Employee’sconduct that is materially detrimental to Company’s business reputation orgoodwill;

 

(v)           Anydishonesty in dealing between Employee and Company or between Employee andCompany’s vendors, advisors, other employees, or customers;

 

(vi)          Employee’sactive use of alcohol or controlled substances in a manner which impairsEmployee’s ability to perform his duties;

 

(vii)         Employee’sviolation of any material portion of this Agreement;

 

(viii)        Employee’sfailure to substantially perform his material duties, which failure is notcured within thirty (30) days after Employee’s receipt of written notice fromCompany specifying the non-performance.

 

In no event shall Employee’s death ordisability (as defined below) constitute Good Cause.  “Disability” shall mean Employee’s failure orinability, for reasons of health, to perform Employee’s usual and customaryduties on behalf of the Company in the usual and customary manner for a totalof more than 90 consecutive business days (excluding Saturdays, Sundays anddays during which the Company is closed due to a recognized holiday).

 

(b)           Thetermination of employment with the Company by Employee for Good Reason.  Such termination shall be accomplished by,and effective upon, Employee giving written notice to the Company of hisdecision to terminate.  “Good Reason”shall mean a good faith determination by Employee, in Employee’s sole andabsolute judgment that any one or more of the following events has occurred onor after the date of the Change of Control without the Employee’s expresswritten consent:

 

(i)            Achange in Employee’s reporting responsibilities, titles or offices as in effectimmediately prior to the date of the Change of Control, or any 

 

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removal of Employee from or anyfailure to re-elect Employee to any of such positions, which has the effect ofdiminishing Employee’s responsibility or authority;

 

(ii)           Areduction in Employee’s base salary in effect immediately prior to the date ofthe Change of Control;

 

(iii)          RequiringEmployee to move to or work from a location that is outside of a fifty (50)mile radius of Employee’s job location on the date of the Change of Control;

 

(iv)          Withoutthe adoption of a replacement plan, program or arrangement that providesbenefits to Employee that are equal to or greater than those benefits that arediscontinued or adversely affected:

 

(A)          TheCompany’s failure to continue in effect, within its maximum stated term, anypension, bonus, incentive, stock ownership, stock purchase, stock option, lifeinsurance, health, accident, disability, or any other employee compensation orbenefit plan, program or arrangement, in which Employee is participatingimmediately prior to the date of the Change of Control; or

 

(B)           TheCompany taking any action that would adversely affect Employee’s participationor materially reduce Employee’s benefits under any of such plans, programs orarrangements; or

 

(v)           Anymaterial breach by the Company of this Agreement so long as Employee has giventhe Company thirty (30) days notice of such breach, and the Company has notcured the breach during that thirty (30) day period.

 

Termination for “Good Reason” shall notinclude Employee’s death or a termination of employment by Employee for anyreason other than the events specified in clauses (1) through (5) above.

 

4.             **Compensation and Benefits**.  Subject to the limitations contained in Section 5below, upon a Change of Control Termination, Employee shall be entitled to thefollowing compensation and benefits:

 

(a)           TheCompany shall pay to Employee:

 

(i)            Withinfive (5) days of the Change of Control Termination, all salary and othercompensation earned by Employee through the date of the Change of ControlTermination at the rate in effect immediately prior to such Change of ControlTermination;

 

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(ii)           Withinfifteen (15) days of the Change of Control Termination, all other amounts towhich Employee may be entitled to receive under any compensation planmaintained by the Company, subject to any distribution requirements containedin such compensation plans; and

 

(iii)          Aseverance benefit in a single lump sum payment, an aggregate amount equal toone hundred percent (100%) of Employee’s then current annual base salary.

 

(b)           TheCompany shall provide, at no cost to Employee, continued coverage under theCompany’s group life, health or dental benefit plans, if any, at a levelcomparable to the benefits which Employee was receiving or entitled to receiveimmediately prior to the Change of Control Termination or, if greater, at alevel comparable to the benefits which Employee was receiving immediately priorto the event which constituted Good Reason. Employee shall be entitled to such continued coverage for a six monthperiod following such Change of Control Termination or, if earlier, until Employeeis eligible to be covered for such benefits through his employment with anotheremployer.  The Company may, in its solediscretion, provide such coverage through the purchase of individual insurancecontracts for Employee.

 

5.             **Payment of Attorneys Fees and Other Costs**.  If, after a Change in Control of the Company,a good faith dispute arises with respect to the enforcement of Employee’srights under this Agreement or if any legal or arbitration proceeding shall bebrought in good faith to enforce or interpret any provision contained herein orto recover damages for breach hereof, Employee shall recover from the Company (a) reasonableattorneys’ fees and necessary costs and disbursements incurred by Employee as aresult of such dispute or such legal or arbitration proceeding, and (b) prejudgmentinterest on any money judgment or arbitration award obtained by Employeecalculated at the prime rate announced from time to time by Wells Fargo BankMinnesota, N. A., or the maximum rate permitted under Section 280G(d)(4) ofthe Internal Revenue Code of 1986, as amended, or any successor provision,whichever rate is lower, such prejudgment interest to be paid from the datethat payments to Employee should have been made under this Agreement.

 

6.             **Withholding Taxes**. The Company shall beentitled to deduct from all payments or benefits provided for under thisAgreement any federal, state or local income and employment related taxesrequired by law to be withheld with respect to such payments or benefits.

 

7.             **Successors and Assigns**.  This Agreement shall inure to the benefit ofand shall be enforceable by Employee, his heirs and the personal representativeof his estate, and shall be binding upon and inure to the benefit of theCompany and its successors and assigns. The Company will require the transferee of any sale of all orsubstantially all of the business and assets of the Company or the survivor ofany merger, consolidation or other transaction expressly to agree to honor thisAgreement in the same manner and to the same extent that the Company would berequired to perform this Agreement if no such event had taken place.  Failure of the Company to obtain suchagreement before the effective date of such event shall be a breach of 

 

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this Agreement and shallentitle Employee to the benefits provided in Section 4 as if Employee hadterminated employment for Good Reason following a Change in Control.

 

8.             **Notices**. For the purpose of this Agreement, notices and all other communicationsprovided for in the Agreement shall be in writing and shall be deemed to havebeen duly given when delivered or mailed by United States certified orregistered mail, return receipt requested, postage prepaid, addressed to therespective addresses set forth on the first page of this Agreement or tosuch other address as either party may have furnished to the other in writingin accordance herewith, except that notice of change of address shall beeffective only upon receipt.  All noticesto the Company shall be directed to the attention of the Board of Directors ofthe Company.

 
| For Ciprico:   | 17400 Medina  Road       |
|----------------|--------------------------|
|           | Plymouth, MN  55447      |
|           |                     |
| For  Employee: | 1033 Brooks  Avenue West |
|           | Roseville,  MN 55113     |

 

9.             **Captions**. The headings or captions set forth in this Agreement are for convenienceonly and shall not affect the meaning or interpretation of this Agreement.

 

10.           **Governing Law**.  The validity, interpretation, constructionand performance of this Agreement shall be governed by the laws of the State ofMinnesota.

 

11.           **Construction**.  Wherever possible, each term and provision ofthis Agreement shall be interpreted in such manner as to be effective and validunder applicable law.  If any term orprovision of this Agreement is invalid or unenforceable under applicable law, (a) theremaining terms and provisions shall be unimpaired, and (b) the invalid orunenforceable term or provision shall be deemed replaced by a term or provisionthat is valid and enforceable and that comes closest to expressing theintention of the unenforceable term or provision.

 

12.           **Amendment; Waivers**.  This Agreement may not be modified, amended,waived or discharged in any manner except by an instrument in writing signed byboth parties hereto.  The waiver byeither party of compliance with any provision of this Agreement by the otherparty shall not operate or be construed as a waiver of any other provision ofthis Agreement, or of any subsequent breach by such party of a provision ofthis Agreement.

 

13.           **Entire Agreement**.  This Agreement supersedes all prior or contemporaneousnegotiations, commitments, agreements (written or oral) and writings betweenthe Company and Employee with respect to the subject matter hereof andconstitutes the entire agreement and understanding between the parties hereto.  All such other negotiations, commitments,agreements and writings will have no further force or effect, and the partiesto any such other negotiation, commitment, agreement or writing will have nofurther rights or obligations thereunder.

 

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14.           **Counterparts**.  This Agreement may be executed in severalcounterparts, each of which shall be deemed to be an original but all of whichtogether shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties hereto havecaused this Agreement to be duly executed and delivered as of the day and yearfirst above written.

 
|   | CIPRICO INC.         |
|--------|----------------------|
|   |                 |
|   |                 |
|   | By:                  | /s/ James W. Hansen |   |
|   |                 | Its: | President / CEO |
|   |                 |   |   |
|   |                 |   |   |
|   | /s/ Monte S. Johnson |   |
|        |                      |  |  |  |  |

 

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