SECOND AMENDMENT TO
EXHIBIT 10.1
SECOND AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (Second Amendment) dated as of September 30, 2009 is made and entered into by and between Mercury Computer Systems, Inc., a Massachusetts corporation (the Company), and Mark Aslett (the Executive).
WHEREAS, the Company and the Executive are parties to an Employment Agreement dated as of November 19, 2007, as amended (the Employment Agreement); and
WHEREAS, the parties hereto desire to amend the Employment Agreement to conform certain provisions of the Employment Agreement to those of the Companys bonus plans; and
WHEREAS, capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and the Executive agree as follows:
1. | Section 3(b)(i) of the Employment Agreement is amended by deleting said section and substituting therefor the following: |
Annual Bonus. The Executive shall be eligible to participate in the Companys Annual Executive Bonus PlanCorporate Financial Performance (the Corporate Bonus Plan) and Annual Executive Bonus PlanIndividual Performance (the Individual Bonus Plan) or any successor plans (the Corporate Bonus Plan, the Individual Bonus Plan, and any such successor plans being collectively referred to herein as the Bonus Plans) in an amount determined by the Board in accordance with the terms of the Bonus Plans. Except as otherwise set forth in the Bonus Plans, the Executives bonuses under the Bonus Plans shall be paid in the first fiscal quarter of the fiscal year following the fiscal year in which such bonuses were earned. Awards under the Bonus Plans shall be prorated for partial years of employment.
2. | Section 3(b)(ii) of the Employment Agreement is amended by deleting said section in its entirety. |
3. | Section 5(b)(i) of the Employment Agreement is amended by deleting said section and substituting therefor the following: |
(i) the Company shall pay the Executive an amount equal to the sum of (x) the Executives Base Salary and (y) the Executives Target Bonus Amount (the Severance Amount). The Severance Amount shall be paid out on a salary continuation basis in equal installments over a 12-month period beginning with the first payroll date that occurs 30 days after the Date of Termination. Solely for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), each installment payment is considered a separate payment. Notwithstanding the foregoing, if the Executive breaches any of the provisions contained in the Non-Competition Agreement or Section 6 of this Agreement, all payments of the Severance Amount shall immediately cease. For purposes of this Section 5(b)(i), Target Bonus Amount shall mean the aggregate amount of the target annual bonuses set forth in writing and available to the Executive under the Bonus Plans. For the avoidance of doubt, the parties acknowledge and agree that (1) the Target Bonus Amount does not include any over-achievement awards under the Bonus Plans, and (2) the Bonus Plans, and not this Agreement, shall govern the payment of any amounts previously earned under the Bonus Plans that are payable on a delayed, multi-year basis following the performance periods during which such amounts were earned; and
4. | All other provisions of the Employment Agreement shall remain in full force and effect according to their respective terms, and nothing contained herein shall be deemed a waiver of any right or abrogation of any obligation otherwise existing under the Employment Agreement except to the extent specifically provided for herein. |
5. | The validity, interpretation, construction, and performance of this Second Amendment shall be governed by the laws of the Commonwealth of Massachusetts. |
6. | This Second Amendment may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. |
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned officer, on behalf of Mercury Computer Systems, Inc., and the Executive have hereunto set their hands as an agreement under seal, all as of the date first above written.
MERCURY COMPUTER SYSTEMS, INC. | ||
By: | /s/ ROBERT E. HULT | |
Name: Robert E. Hult | ||
Title: Senior Vice President, Chief Financial Officer, and Treasurer | ||
EXECUTIVE | ||
/s/ MARK ASLETT | ||
Mark Aslett |