EXHIBIT 10.15


 


CHANGE OF CONTROL AGREEMENT


 


	
  Parties:

  	
   

  	
  Ciprico Inc.

  	
   

  	
  (“Company”)

  
	
   

  	
   

  	
  17400 Medina Road

  Plymouth, MN 55447

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert G. Brown

  	
   

  	
  (“Executive”)

  
	
   

  	
   

  	
  5835 Juneau Lane North

  Plymouth, MN 55447

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Effective Date:

  	
  November 15, 2003

  	
   

  	
   

  
								



 


RECITALS:


 


1.             Executive has been employed by Company
since May 1997 as Vice President of Sales, has extensive knowledge and
expertise relating to Company’s business and has contributed to Company’s
success.


 


2.             The parties recognize that a “Change of
Control” may materially change or diminish Executive’s responsibilities and
substantially frustrate Executive’s commitment to the Company.


 


3.             The parties further recognize that it is
in the best interests of the Company and its stockholders to provide certain benefits
payable upon a “Change of Control Termination” to encourage Executive to
continue in his position in the event of a Change of Control, although no such
Change of Control is now contemplated or foreseen.


 


4.             The parties further desire to provide for certain
benefits payable upon certain involuntary terminations of Executive’s
employment.


 


AGREEMENTS:


 


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


 


1.             Term of
Agreement.  The term of this
Agreement shall commence on the Effective Date and shall continue in effect
until termination of Executive’s employment which does not constitute a Change
of Control Termination; provided, however, that if a Change of Control of the
Company shall occur during the term of this Agreement, this Agreement shall
instead continue in effect for a period of twelve (12) months following the
date of such Change of Control.  Any
rights and obligations accruing before the termination or expiration of this
Agreement shall survive to the extent necessary to enforce such rights and
obligations.


 


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


 


(a)           A
merger or consolidation to which the Company is a party if the individuals and
entities who were shareholders of the Company immediately prior to the
effective date of such merger or consolidation have, immediately following the
effective date of such merger or consolidation, beneficial ownership (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934) of less than
fifty percent (50%) of the total combined voting power of all classes of
securities issued by the surviving corporation for the election of directors of
the surviving corporation;


 


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


 


(c)           The
sale of substantially all of the assets of the Company to any person or entity
that is not a wholly-owned subsidiary of the Company;


 


(d)           The
approval by the stockholders of the Company of any plan or proposal for the
liquidation of the Company;


 


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


 


(f)            The
execution by the Company of a letter of intent, an agreement in principle or a
definitive 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 of Control, or a
tender or exchange offer or proxy contest is commenced that ultimately results
in an event described in Section 2(b) or 2(e).


 


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


 


(a)           The termination of
Executive’s employment by the Company for any reason except Good Cause.  For purposes of this Agreement, “Good Cause”
shall include, but not be limited to, the following:


 


(i)            Executive’s conviction
of or plea of guilty or nolo contendere
to a felony resulting from conduct occurring on or after the date of the Change
of Control;


 


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


 


(iii)          Executive’s incurable
breach of any material element of any proprietary or confidential information
agreement with the Company;


 


(iv)          Executive’s conduct that
is materially detrimental to Company’s business reputation or goodwill;


 


(v)           Any dishonesty in
dealing between Executive and Company or between Executive and Company’s
vendors, advisors, other employees, or customers;


 


(vi)          Executive’s active use
of alcohol or controlled substances in a manner which impairs Executive’s
ability to perform his duties;


 


(vii)         Executive’s violation of
any material portion of this Agreement;


 


(viii)        Executive’s failure to
substantially perform his material duties, which failure is not cured within
thirty (30) days after Executive’s receipt of written notice from Company
specifying the non-performance.


 


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


 


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


 


(i)            A
change in Executive’s reporting responsibilities, titles or offices as in
effect immediately prior to the date of the Change of Control, or any removal
of Executive from or any failure to re-elect Executive to any of such
positions, which has the effect of diminishing Executive’s responsibility or
authority;


 


(ii)           A
reduction in Executive’s base salary in effect immediately prior to the date of
the Change of Control;


 


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


 


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(iv)          Without
the adoption of a replacement plan, program or arrangement that provides
benefits to Executive that are equal to or greater than those benefits that are
discontinued or adversely affected:


 


(A)          The Company’s failure to continue in effect,
within its maximum stated term, any pension, bonus, incentive, stock ownership,
stock purchase, stock option, life insurance, health, accident, disability, or
any other employee compensation or benefit plan, program or arrangement, in
which Executive is participating immediately prior to the date of the Change of
Control; or


 


(B)           The Company taking any action that would
adversely affect Executive’s participation or materially reduce Executive’s
benefits under any of such plans, programs or arrangements; or


 


(v)           Any
material breach by the Company of this Agreement so long as Executive has given
the Company thirty (30) days notice of such breach, and the Company has not
cured the breach during that thirty (30) day period.


 


Termination for “Good Reason” shall not
include Executive’s death or a termination of employment by Executive for any
reason other than the events specified in clauses (1) through (5) above.


 


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


 


(a)           The
Company shall pay to Executive:


 


(i)            Within five (5) days of the Change of
Control Termination, all salary and other compensation earned by Executive
through the date of the Change of Control Termination at the rate in effect
immediately prior to such Change of Control Termination;


 


(ii)           Within fifteen (15) days of the Change of
Control Termination, all other amounts to which Executive may be entitled to
receive under any compensation plan maintained by the Company, subject to any
distribution requirements contained in such compensation plans; and


 


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


 


(b)           The
Company shall provide, at no cost to Executive, continued coverage under the
Company’s group life, health or dental benefit plans, if any, at a level
comparable to the benefits which Executive was receiving or entitled to receive
immediately prior to the Change of Control Termination or, if greater, at a
level comparable to the benefits which Executive was receiving immediately
prior to the event which constituted Good Reason.  Executive shall be entitled to such continued coverage for the
maximum period required by applicable federal and state law following such
Change of Control Termination or, if earlier, until Executive is eligible to be
covered for such benefits through his employment with another employer.  The Company may, in its sole discretion,
provide such coverage through the purchase of individual insurance contracts
for Executive.


 


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 Executive’s rights under this
Agreement or if any legal or arbitration proceeding shall be brought in good
faith to enforce or interpret any provision contained herein or to recover
damages for breach hereof, Executive shall recover from the Company (a)
reasonable attorneys’ fees and necessary costs and disbursements incurred by
Executive as a result of such dispute or such legal or arbitration proceeding,
and (b) prejudgment interest on any money judgment or arbitration award
obtained by Executive calculated at the prime rate announced from time to time
by Wells Fargo Bank Minnesota, N. A., or the maximum rate permitted under
Section 280G(d)(4) of the Internal Revenue Code of 1986, as amended, or
any successor provision, whichever rate is lower, such prejudgment interest to
be paid from the date that payments to Executive should have been made under this
Agreement.


 


6.             Withholding
Taxes. The Company shall be entitled to deduct from all payments or
benefits provided for under this Agreement any federal, state or local income
and employment related taxes required by law to be withheld with respect to
such payments or benefits.


 


7.             Successors
and Assigns.  This Agreement
shall inure to the benefit of and shall be enforceable by Executive, his heirs
and the personal representative of his estate, and shall be binding upon and
inure to the benefit of the Company and its successors and assigns.  The Company will require the transferee of
any sale of all or substantially all of the business and assets of the Company
or the survivor of any merger, consolidation or other transaction expressly to
agree to


 


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honor this Agreement in the same manner and to the same extent that the
Company would be required to perform this Agreement if no such event had taken
place.  Failure of the Company to obtain
such agreement before the effective date of such event shall be a breach of
this Agreement and shall entitle Executive to the benefits provided in
Section 4 as if Executive had terminated employment for Good Reason
following a Change in Control.


 


8.             Notices.  For the purpose of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt. 
All notices to the Company shall be directed to the attention of the
Board of Directors of the Company.


 


	
  For Ciprico:

  	
   

  	
  17400 Medina Road

  Plymouth, MN 55447

  
	
   

  	
   

  	
   

  
	
  For Employee:

  	
   

  	
  5835 Juneau Lane North

  Plymouth, MN 55447

  



 


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


 


10.           Governing
Law.  The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Minnesota.


 


11.           Construction.  Wherever possible, each term and provision
of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law.  If any term
or provision of this Agreement is invalid or unenforceable under applicable
law, (a) the remaining terms and provisions shall be unimpaired, and (b) the
invalid or unenforceable term or provision shall be deemed replaced by a term
or provision that is valid and enforceable and that comes closest to expressing
the intention 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 by both parties hereto.  The waiver by either party of compliance with any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any other provision of this Agreement, or of any subsequent breach by such
party of a provision of this Agreement.


 


13.           Entire
Agreement.  This Agreement
supersedes all prior or contemporaneous negotiations, commitments, agreements
(written or oral) and writings between the Company and Executive with respect
to the subject matter hereof and constitutes 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 parties to any such other negotiation,
commitment, agreement or writing will have no further rights or obligations
thereunder.


 


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


 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and delivered as of the day and year
first above written.


 


	
   

  	
  CIPRICO INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert H. Kill

  	
   

  	
   

  
	
   

  	
  Its:

  	
  President and CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Robert G. Brown

  	
   

  	
   

  
	
   

  	
  Robert G. Brown

  	
   

  
						



 


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