EXHIBIT 10.1.2
CHANGE OF CONTROL
AGREEMENT
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Parties:
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Ciprico Inc.
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(“Company”)
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17400 Medina Road
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Plymouth, MN 55447
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Steven Merrifield
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(“Employee”)
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Effective Date:
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12/8/06
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RECITALS:
1.
Employee has been employed by Company since 12/8/06 in various
capacities, 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 Employee’s responsibilities and
substantially frustrate Employee’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 Employee 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 Employee’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 Employee’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:
1
(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;
(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 Employee’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:
2
(i)
Employee’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)
Employee’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 Employee
shall not be “willful” unless it is done, or omitted to
be done, in bad faith and without any reasonable belief that
Employee’s action or omission was in the best interests of
the Company;
(iii)
Employee’s incurable breach of any material element of any
proprietary or confidential information agreement with the
Company;
(iv)
Employee’s intentional conduct that is materially detrimental
to Company’s business reputation or goodwill;
(v)
Any intentional dishonesty in dealing between Employee and Company
or between Employee and Company’s vendors, advisors, other
employees, or customers;
(vi)
Employee’s active use of alcohol or controlled substances in
a manner which materially impairs Employee’s ability to
perform his duties;
(vii)
Employee’s violation of any material portion of this
Agreement; which violation is not cured within thirty (30) days
after Employee’s receipt of written notice from Company
specifying the violation.
(viii)
Employee’s failure to substantially perform his material
duties, which failure is not cured within thirty (30) days after
Employee’s receipt of written notice from Company specifying
the non-performance.
In no event shall Employee’s
death or disability (as defined below) constitute Good Cause.
“Disability” shall mean Employee’s
failur
