Exhibit 10.1
CHANGE IN CONTROL SEVERANCE
AGREEMENT
THIS AGREEMENT, dated
September 30, 2009, is made by and between Mercury Computer
Systems, Inc., a Massachusetts corporation with its principal
offices at 201 Riverneck Road, Chelmsford, Massachusetts 01824 (the
“Company”), and Mark Aslett (the
“Executive”) residing in Winchester, Massachusetts
01890.
WHEREAS, the Company considers the
establishment and maintenance of a sound and vital management to be
essential to protecting and enhancing the best interests of the
Company and its shareholders; and
WHEREAS, the Executive has made and
is expected to make, due to the Executive’s intimate
knowledge of the business and affairs of the Company, its policies,
methods, personnel, and problems, a significant contribution to the
profitability, growth, and financial strength of the Company;
and
WHEREAS, the Company, as a
publicly-held corporation, recognizes that the possibility of a
Change in Control may exist, and that such possibility and the
uncertainty and questions which it may raise among management may
result in the departure or distraction of the Executive in the
performance of the Executive’s duties, to the detriment of
the Company and its shareholders; and
WHEREAS, it is in the best interests
of the Company and its shareholders to reinforce and encourage the
continued attention and dedication of management personnel,
including the Executive, to their assigned duties without
distraction and to ensure the continued availability to the Company
of the Executive in the event of a Change in Control;
NOW, THEREFORE, in consideration of
the foregoing and other respective covenants and agreements of the
parties herein contained, the parties hereto agree as
follows:
1. Defined Terms . The
definitions of capitalized terms used in this Agreement are
provided in Section 18.
2. Term of Agreement . The
term of this Agreement (the “Term”) shall commence on
the date hereof and shall continue in effect through June 30,
2012; provided , however , that commencing on
July 1, 2012 and each July 1 thereafter, the Term shall
automatically be extended for one additional year unless, not later
than September 30 of the preceding year, the Company or the
Executive shall have given notice not to extend the Term; and
further provided , however , that if a Change
in Control shall have occurred during the Term, the Term shall
expire on the last day of the twenty-fourth (24
th ) month following the month in which such
Change in Control occurred.
3. Company’s Covenants
Summarized . In order to induce the Executive to remain in the
employ of the Company and in consideration of the Executive’s
covenants in Section 4, the Company, under the conditions
described herein, shall pay the Executive the Severance Payments
and the other payments and benefits described herein. Except as
provided in Section 9.1, no Severance Payments shall be
payable under this Agreement unless there shall have been a
Terminating Event following a Change in Control (or during a
Potential Change in Control Period) and during the Term. This
Agreement shall not be construed as creating an express
or
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implied contract of employment and, except as
otherwise agreed in writing between the Executive and the Company,
the Executive shall not have any right to be retained in the employ
of the Company.
4. The Executive’s
Covenants . Subject to the terms and conditions of this
Agreement, in the event of a Potential Change in Control, the
Executive shall remain in the employ of the Company until the
earliest of (i) the date of a Change in Control, (ii) the
date of termination by the Executive of the Executive’s
employment for Good Reason or by reason of death, Disability or
Retirement, or (iii) the termination by the Company of the
Executive’s employment for any reason.
5. Termination Following a Change
in Control for Disability; Other Reasons .
5.1 If the Executive fails to
perform the Executive’s full-time duties with the Company
following a Change in Control as a result of incapacity due to
physical or mental illness, during any period when the Executive so
fails to perform the Company shall pay the Base Salary to the
Executive, together with all compensation and benefits payable to
the Executive under the terms of any compensation or benefit plan,
program or arrangement (other than the Company’s short- or
long-term disability plan, as applicable, but including any bonus
or incentive plan) maintained by the Company during such period,
until the Executive resumes the full time performance of such
duties or the Executive’s employment is terminated by the
Company for Disability.
5.2 If the Executive’s
employment shall be terminated for any reason following a Change in
Control, the Company shall pay the Base Salary to the Executive
through the Date of Termination, together with all compensation and
benefits payable to the Executive through the Date of Termination
under the terms of the Company’s compensation and benefit
plans, programs or arrangements as in effect immediately prior to
the Date of Termination or, if more favorable to the Executive, as
in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
5.3 Except as expressly provided
herein, if the Executive’s employment shall be terminated for
any reason following a Change in Control, the Company shall pay to
the Executive the Executive’s normal post-termination
compensation and benefits as such payments become due. Such
post-termination compensation and benefits shall be determined
under, and paid in accordance with, the Company’s retirement,
insurance and other compensation or benefit plans, programs and
arrangements as in effect immediately prior to the Date of
Termination or, if more favorable to the Executive, as in effect
immediately prior to the occurrence of the first event or
circumstance constituting Good Reason.
6. Severance Payments and
Benefits; Vesting of Stock Awards .
6.1 Severance . Subject to
the Executive’s execution of and the effectiveness of a
General Release in a form identical to or substantially the same as
the release attached as Exhibit A hereto (the
“Release”) within twenty-eight (28) days of the
Date of Termination, if a Terminating Event occurs within
twenty-four (24) months following a Change in Control (or
during a Potential Change in Control Period) and during the Term,
then the Company shall pay the Executive the amounts, and provide
the Executive the benefits, described in this Section 6.1
(“Severance Payments”), in addition to any payments and
benefits to which the Executive is entitled under Section 5.
Except as described above or in Section 9.1, the Executive
shall not be entitled to benefits pursuant to this Section 6.1
unless a Change in Control shall have occurred during the
Term.
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(A) The Company shall pay to the
Executive a lump sum severance payment, in cash, equal to two
(2) times the sum of (i) the Base Salary, and
(ii) the Target Bonus Amount in respect of the fiscal year in
which the Date of Termination occurs (without giving effect to any
event or circumstance constituting Good Reason), assuming for this
purpose attainment of 100% of any applicable target. Such amount
shall be paid in one lump sum payment no later than thirty
(30) days following the Date of Termination; provided,
however, that if the Terminating Event is during a Potential Change
in Control Period, or after the Change in Control but the Change in
Control does not constitute a change in the ownership or effective
control of the Company, or in the ownership of a substantial
portion of the assets of the Company, within the meaning of
Section 409A of the Code, and the Executive otherwise has a
contractual right to severance that is considered deferred
compensation within the meaning of Section 409A of the Code,
such amount shall be paid in the same form (e.g., lump sum, salary
continuation, etc.) as set forth in such contract beginning with
the first payroll date that occurs thirty (30) days after the
Date of Termination.
(B) For the twenty-four
(24) month period immediately following the Date of
Termination, the Company shall arrange to provide the Executive and
his dependents health and dental insurance benefits on the same
terms and conditions as though the Executive had remained an active
employee. The cost of providing the benefits set forth in this
Section 6.1(B) shall be in addition to (and shall not reduce)
the Severance Payments. Benefits otherwise receivable by the
Executive pursuant to this Section 6.1(B) shall be reduced to
the extent the Executive becomes eligible to receive comparable
benefits from a new employer or pursuant to a government-sponsored
health insurance or health care program.
(C) The Company shall pay the cost
of providing the Executive with outplacement services up to a
maximum of $45,000, provided that (i) the Executive begins to
utilize such services within six months following the Date of
Termination and completes the utilization of such services no later
than the last day of the calendar year following the calendar year
that contains the Date of Termination, and (ii) such services
are provided by an outplacement provider approved by the Company
(which approval shall not be unreasonably withheld, delayed or
conditioned). Such payment shall be made by the Company directly to
the service provider promptly following the provision of such
services and the presentation to the Company of documentation of
the provision of such services.
6.2 Vesting of Stock Awards .
Subject to the Executive’s execution of the Release and the
effectiveness of the Release within twenty-eight (28) days of
the Date of Termination, if a Terminating Event occurs within
twenty-four (24) months following a Change in Control and
during the Term, anything contained in any applicable option
agreement or stock-based award agreement to the contrary
notwithstanding, vesting of all stock options and other stock-based
awards granted to the Executive by the Company and outstanding
immediately prior to such Terminating Event shall immediately
accelerate and all such awards shall become exercisable or
non-forfeitable as of the effective date of such Terminating Event.
For the avoidance of doubt, the Executive shall not be entitled
hereunder to the accelerated vesting of any stock options or other
stock-based awards upon a Terminating Event during a Potential
Change in Control Period.
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6.3 Best Net Benefit
Limitation .
(A) Anything contained in this
Agreement to the contrary notwithstanding, if any of the payments
or benefits received or to be received by the Executive (whether
pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the
Company or such Person) (all such payments and benefits being
hereinafter referred to as the “Total Payments”) will
be subject to the Excise Tax, the following provisions shall
apply:
(i) If the Total Payments, reduced
by the sum of (a) the Excise Tax and (b) the total of the
Federal, state, and local income and employment taxes payable by
the Executive on the amount of the Total Payments which are in
excess of the Threshold Amount, are greater than or equal to the
Threshold Amount, the Executive shall be entitled to the full
benefits payable under this Agreement.
(ii) If the Threshold Amount is less
than (a) the Total Payments, but greater than (b) the
Total Payments reduced by the sum of (1) the Excise Tax and
(2) the total of the Federal, state and local income and
employment taxes on the amount of the Total Payments which are in
excess of the Threshold Amount, then the benefits payable under
this Agreement shall be reduced (but not below zero) to the extent
necessary so that the maximum Total Payments shall not exceed the
Threshold Amount. In such event, the Total Payments shall be
reduced in the following order: (1) cash payments not subject
to Section 409A of the Code; (2) cash payments subject to
Section 409A of the Code; (3) equity-based payments; and
(4) non-cash form of benefits. To the extent any payment is to
be made over time (e.g., in installments), then the payments shall
be reduced in reverse chronological order.
(B) The determination as to which of
the alternative provisions of subsection (A) above shall apply
to the Executive shall be made by a nationally recognized
accounting firm selected by the Company (the “Accounting
Firm”), which shall provide detailed supporting calculations
both to the Company and the Executive within fifteen
(15) business days of the Date of Termination, if applicable,
or at such earlier time as is reasonably requested by the Company
or the Executive. For purposes of determining which of the
alternative provisions of subsection (A) above shall apply,
the Executive shall be deemed to pay Federal income taxes at the
highest marginal rate of Federal income taxation applicable to
individuals for the calendar year in which the determination is to
be made, and state and local income taxes at the highest marginal
rates of individual taxation in the state and locality of the
Executive’s residence on the Date of Termination, net of the
maximum reduction in Federal income taxes which could be obtained
from deduction of such state and local taxes. Any determination by
the Accounting Firm shall be binding upon the Company and the
Executive.
6.4
Section 409A