EXECUTION VERSION Does not contain Technical Data. //Mercury Proprietary/No Tech Data// EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this “Agreement”), effective as of August 15, 2023 (the “Effective Date”), is entered into by and between Mercury...
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EXECUTION VERSION Does not contain Technical Data. //Mercury Proprietary/No Tech Data// EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this “Agreement”), effective as of August 15, 2023 (the “Effective Date”), is entered into by and between Mercury Systems, Inc. (the “Company”) and Xxxxxxx X. Xxxxxxxx (the “Executive”). WHEREAS, the Executive is currently employed as Interim President and Chief Executive Officer of the Company; WHEREAS, the Company desires to continue to employ the Executive as its President and Chief Executive Officer and to enter into an agreement embodying the terms of such employment; and WHEREAS, the Executive desires to accept such continuation of employment with the Company, subject to the terms and conditions of this Agreement. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 1. Employment Period. Subject to the provisions for earlier termination hereinafter provided, the Executive’s employment hereunder shall be for a term (the “Employment Period”) commencing on the Effective Date and ending on the fourth anniversary of the Effective Date. The Employment Period shall automatically renew for additional twelve (12) month periods unless no later than thirty (30) days prior to the end of the applicable Employment Period either party gives written notice of non-renewal to the other, in which case Executive’s employment will terminate at the end of the then- applicable Employment Period, subject to earlier termination as provided in Section 3 hereof. Notwithstanding the foregoing, the Executive’s employment hereunder is terminable at will by the Company or by the Executive at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof. 2. Terms of Employment. (a) Position and Duties. (i) Role and Responsibilities. During the Employment Period, the Executive shall serve as President and Chief Executive Officer of the Company, and shall perform such employment duties as are usual and customary for such positions. After the 2023 annual meeting of shareholders of the Company, the Executive shall serve as Chairman of the Company, and the Executive shall report directly to the Board of Directors of the Company (the “Board”). At the Company’s request, the Executive shall serve the Company and/or its subsidiaries and affiliates (collectively, the “Company Group”) in other capacities in addition to the foregoing, consistent with the Executive’s position as Chief Executive Officer of the Company. In furtherance of the foregoing, following the Effective Date, Executive shall continue to serve as a member of the Board. In the event that the Executive, during the Employment Period, serves in any one or more of such additional capacities (including Executive’s service to the Board), the Executive’s compensation shall not be increased beyond that specified in Section 2(b) hereof. In addition, in the event the Executive’s service in one or more of such additional capacities is terminated, the Executive’s compensation, as specified in Section 2(b) hereof, shall not be diminished or reduced in any manner as a result of such termination provided that the Executive otherwise remains employed under the terms of this Agreement. (ii) Exclusivity. During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive may be entitled, the Executive agrees to devote his full business time and attention to the business and affairs of the Company. Notwithstanding the foregoing,
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2 during the Employment Period, it shall not be a violation of this Agreement for the Executive to (A) manage his personal investments or (B) perform limited activities that the Board (or, after the Effective Date, the Nominating and Governance Committee thereof) has approved in writing, in each case, so long as such activities do not individually or in the aggregate materially interfere or conflict with the performance of the Executive’s duties and responsibilities under this Agreement. The Company and the Executive acknowledge and agree that the Executive shall be permitted to continue the activities described on Exhibit A, Section 1; provided, that the Executive’s time commitment with respect to such activities is not greater than his historical time commitment in more than a de minimis manner and so long as such activities do not individually or in the aggregate materially interfere or conflict with the performance of the Executive’s duties and responsibilities under this Agreement. The Executive agrees to provide information to the Nominating and Governance Committee of the Board at least annually, and upon request, regarding the time commitment and scope of such activities. To the extent that, as of the Effective Date, the Executive is engaged in any activities that are prohibited pursuant to the preceding sentence, including those activities described in Exhibit A, Section 2, the Executive shall have previously informed the Board of such activities and shall terminate the Executive’s engagement in such activities within sixty (60) days of the Effective Date, and a failure to do so shall be deemed a material breach of this Agreement. (iii) Principal Location. During the Employment Period, the Executive shall perform the services required by this Agreement from the Company’s offices in Arlington, Virginia, except for travel to other locations as may be necessary to fulfill the Executive’s duties and responsibilities hereunder. (iv) Security Clearance. During the Employment Period, the Executive shall at all times maintain an active security clearance at the level of the facility security clearance for the Company’s Andover, Massachusetts headquarters. As of August 7, 2023, the security clearance level for the headquarters is Top Secret. (b) Compensation, Benefits, Etc. (i) Base Salary. With retroactive effect as of July 1, 2023, and during the Employment Period, the Executive shall receive a base salary (the “Base Salary”) of $950,000 per annum. The Base Salary shall be paid in accordance with the Company’s normal payroll practices for executive salaries generally, but no less often than monthly. The Base Salary shall be reviewed at least annually by the Human Capital and Compensation Committee (the “HC3”) of the Board. The Base Salary may be modified by the Board in its sole discretion (including upon recommendation of the HC3), and the term “Base Salary” as utilized in this Agreement shall refer to the Base Salary as so modified. (ii) Annual Cash Bonus. In addition to the Base Salary, the Executive shall be eligible to earn, for each fiscal year of the Company ending during the Employment Period beginning with fiscal year 2024, a performance-based bonus (an “Annual Bonus”) under the Company’s annual incentive plan. Executive’s target Annual Bonus under the annual incentive plan adopted by the Board, as modified from time to time, for a fiscal year shall be 150% of the Base Salary in effect at the end of the third quarter of such fiscal year (the “Target Bonus”). The actual amount of Annual Bonus paid to Executive (if any) may range from 0% to 150 % of the Target Bonus based on the Company’s financial performance, positive or negative discretion of the HC3 or the Board, and other factors determined by the HC3 or the Board, in each case as determined by the HC3 or the Board. Unless otherwise set forth in the applicable annual incentive plan or Section 4 below, payment of any Annual Bonus(es), to the extent any Annual Bonus(es) become payable, will be contingent upon the Executive’s continued employment through the applicable payment date, which shall occur on the date on which annual bonuses are paid generally to the Company’s executive officers.
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11 (ii) “Change of Control” shall mean the occurrence of any of the following: (A) Any “Person,” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Exchange Act) of such person, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the combined voting power of the Company’s then outstanding securities having the right to vote in an election of the Board (“Voting Securities”) (in such case other than as a result of an acquisition of securities directly from the Company or an acquisition of securities involving a Corporate Transaction of the type described in the exclusion set forth in clause (C) below); or (B) Persons who, as of the Effective Date, constitute the Company’s Board (the “Incumbent Directors”) cease for any reason, including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a director of the Company subsequent to the Effective Date shall be considered an Incumbent Director if such person’s election was approved by or such person was nominated for election by either (x) a vote of at least a majority of the Incumbent Directors or (y) a vote of at least a majority of the Incumbent Directors who are members of a nominating committee comprised, in the majority, of Incumbent Directors; but provided further, that any such person whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of members of the Board or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, shall not be considered an Incumbent Director; or (C) The consummation of a consolidation, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Corporate Transaction”); excluding, however, a Corporate Transaction in which the shareholders of the Company immediately prior to the Corporate Transaction, would, immediately after the Corporate Transaction, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate more than fifty percent (50%) of the voting shares of the corporation issuing cash or securities in the Corporate Transaction (or of its ultimate parent corporation, if any). Notwithstanding the foregoing, a “Change of Control ” shall not be deemed to have occurred for purposes of the foregoing clause (A) solely as the result of an acquisition of securities by the Company that, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of shares of Voting Securities beneficially owned by any person to thirty percent (30%) or more of the combined voting power of all then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns thirty percent (30%) or more of the combined voting power of all then outstanding Voting Securities, then a “Change of Control” shall be deemed to have occurred for purposes of the foregoing clause (A) . (iii) “Date of Termination” shall mean the date on which the Executive’s employment with the Company terminates. (iv) “Disability” shall mean that, due to the Executive’s incapacity due to physical or mental illness, (A) the Executive shall have been, or is determined by the Board as reasonably likely to be, absent from the full-time performance of the Executive’s duties with the Company for a period
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14 7. Mutual Waiver of Jury Trial. THE PARTIES EACH WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, XXXX CLAIMS OR OTHERWISE. THE PARTIES EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION WILL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. 8. Successors. (a) This Agreement is personal to the Executive and, without the prior written consent of the Company, shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives. (b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns, and such parties shall be bound by the Company’s obligations hereunder. 9. Clawback/Recoupment. Notwithstanding any other provision in this Agreement to the contrary, any compensation paid to the Executive pursuant to this Agreement or any other agreement or arrangement with the Company shall be subject to mandatory repayment by the Executive to the Company, to the extent any such compensation paid to the Executive is, or in the future becomes, subject to (i) any lawful clawback or recoupment policy adopted by the Company that applies to the Company’s executive officers, or (ii) any law, government regulation or stock exchange listing requirement which imposes mandatory recoupment, under circumstances set forth in such law, government regulation or stock exchange listing requirement. 10. Miscellaneous. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Virginia, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. (b) Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to the Executive: at the Executive’s most recent address on the records of the Company. If to the Company: Mercury Systems, Inc. Attention: General Counsel 00 Xxxxxxxxx Xxxx Xxxxxxx, XX 00000
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[Signature Page to Employment Agreement] Does not contain Technical Data. //Mercury Proprietary/No Tech Data// IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization from the Board, the Company has caused these presents to be executed in its name on its behalf, all as of the day and year first above written. “COMPANY” By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Chief Human Resources Officer “EXECUTIVE” /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
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Exhibit A Does not contain Technical Data. //Mercury Proprietary/No Tech Data// EXHIBIT A BOARD OF DIRECTORS OR ADVISORY BOARDS OF THE FOLLOWING COMPANIES AND ORGANIZATIONS Section 1: To be continued: Catalis (Chairman) Elite Technology (Chairman) Qmulos (Board Member) ForcePoint G2CI (Board Member) (to be established in or around October 2023) Xxxxxxx Equestrian (co-owner) UCLA Xxxxxxxx School of Management, Board of Advisors Section 2: To be discontinued (during transition period set forth in Agreement) / not restarted: Introhive (Board Observer) Marlink (Board Member) PSG (Senior Advisor) PreVeil (Board Observer) StemExpress (Chairman) MilestoneRoad Partners (Chairman, personal consulting business) (not active; will not be restarted)
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Exhibit B - 1 Does not contain Technical Data. //Mercury Proprietary/No Tech Data// understood and agreed that the releases contained herein are intended to cover and do cover all known facts and/or claims, as well as any further facts and/or claims within the scope of such released Claims not known or anticipated, but which may later develop or be discovered, including all the effects and consequences thereof, in each case arising from or relating to any event, dispute or occurrence which arose on or prior to the date hereof. The Releasor, on behalf of Releasor and the other Releasing Parties, acknowledges that the Releasor may hereafter discover facts in addition to, or different from, those which the Releasor now believes to be true with respect to the subject matter of the Claims released herein, but agrees that the Releasor has taken that possibility into account in reaching this agreement, and that the releases given herein shall be and remain in effect notwithstanding the discovery or existence of any such additional or different facts, as to which the Releasing Parties expressly assume the risk. In connection with such waiver and relinquishment, the Releasor, on behalf of the Releasor and the other Releasing Parties, hereby acknowledges that the Releasor is aware that Releasor’s attorneys may hereafter discover claims or facts in addition to, or different from, those which they now know or believe to exist with respect to the subject matter of, or any part of this Release, but that it is nonetheless their intention to fully, finally and forever settle and release all disputes and differences, known or unknown, suspected or unsuspected, as to the released matters, in each case arising from or relating to any event, dispute or occurrence which arose on or prior to the date hereof. 3. Without limiting the generality of the foregoing, the Releasor hereby agrees, on behalf of Releasor and the other Releasing Parties, that this General Release of Claims extends to all rights of the Releasor and the other Releasing Parties under Section 1542 of the California Civil Code and any similar law of any state or territory of the United States, all of which are hereby expressly waived by the Releasor. The Releasor, on behalf of Releasor and the other Releasing Parties, hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the California Civil Code (if any). Section 1542 of the California Civil Code provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” 4. The Releasor represents, warrants and covenants on behalf of Releasor and the other Releasing Parties that there has been, and there will be, no assignment or other transfer of any right or interest arising from or relating to any Releasing Party’s ownership of any securities of the Company or any of its direct or indirect subsidiaries, or any entity advised by the Company, or any Claims which they have or may have against the Released Parties, and the Releasor hereby agrees to indemnify and hold each Released Party harmless from any Claims, costs, expenses and reasonable attorney’s fees directly or indirectly incurred by any of the Released Parties as a result of any person asserting any right or interest pursuant to its assignment or transfer of any such right or interest. 5. The Releasor covenants and shall use reasonable best efforts to cause the other Releasing Parties, never to institute any Claim whether at law or in equity, against any or all of the Released Parties, in any court or administrative agency or before any other public or private tribunal. 6. The Releasor agrees that if the Releasor or any other Releasing Party hereafter commences, joins in, or in any manner seeks relief through any action (including, without limitation, any complaint, cross-claim, counterclaim, third-party complaint or interpleader complaint in any jurisdiction or any action before an administrative or regulatory agency) arising out of, based upon or relating to any of the Claims released by them hereunder, or in any manner assert against any Released Party any of the Claims released hereunder, then the Releasor will indemnify and hold harmless the Released Parties from any settlements, judgments, costs and expenses (including reasonable attorneys’ fees and costs) incurred by such person or entity as a result of or in connection with such action.
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Exhibit B - 2 Does not contain Technical Data. //Mercury Proprietary/No Tech Data// 7. Notwithstanding anything to the contrary contained herein, in no event shall this Release apply to any Claims that may arise from (i) any rights or claims to indemnification under the organizational documents of the Company or any of its subsidiaries or any entity advised by the Company of which the Releasing Party is a director, manager, or officer, under directors and officers liability insurance or under applicable law, (ii) any claim Releasor may have relating to workers compensation or unemployment benefits under applicable state law, (iii) any ongoing rights under contracts relating to Releasor’s ownership of equity in the Company and any ongoing rights for post-termination payments and benefits under Releasor’s Employment Agreement with the Company, or (iv) any Claims that may not be released as a matter of law. Further, nothing herein shall restrict Releasor from filing a charge with, or participating in any proceeding conducted by, the Equal Employment Opportunity Commission or similar state agency; provided, however, this General Release of Claims does release any right to secure damages or other relief awarded in connection with such a proceeding brought by or on behalf of Releasor. 8. The Releasor acknowledges that (i) the Releasor has the right to consult with independent legal counsel in connection with this Release, the Company is herein advising Releasor in writing to consult with such counsel, and the Releasor either has consulted with such counsel or voluntarily chosen not to; (ii) the Releasor has read and understands this Release; and (iii) the Releasor intends to be legally bound by the same. 9. The Releasor has [twenty-one (21) or forty-five (45)]2 days to consider whether or not to sign this Release and, if the Releasor signs this Release prior to the expiration of such [twenty-one (21) or forty-five (45)] day period, the Releasor waives the remainder of that period. The Releasor waives the restarting of the [twenty-one (21) or forty-five (45)] day period in the event of any modification of this Release, whether or not material. The Releasor may revoke Releasor’s acceptance of this Release by delivering written notice of revocation to the General Counsel and Secretary of the Company within the seven (7) day period beginning on the day following the day the Releasor signs this Release (the “revocation period”). To be valid, such revocation must be express and in writing, and personally delivered or sent by certified mail and received by the Company before the expiration of the revocation period. If the Releasor does not revoke acceptance of this Release within the revocation period as provided herein, this Release will be legally binding, irrevocable, and enforceable on the day immediately following the last day of the revocation period. 10. [The Releasor acknowledges that the Releasor has received a list of job titles and ages of all employees eligible for similar severance benefits and the job titles and ages of all employees in the same job classification or organizational unit who are not eligible for similar severance benefits, as well as other information required under the Older Workers Benefits Protection Act to constitute a knowing and voluntary waiver.]3 11. The Releasor acknowledges and agrees that, if any provision of this Release is found, held, or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable under any applicable statute or controlling law, the remainder of this Release shall continue in full force and effect. 12. This Release is deemed made and entered into in the State of Virginia, and in all respects shall be interpreted, enforced, and governed under the internal laws of the State of Virginia, to the extent not preempted by federal law. 2 45 days applies to termination in a layoff, restructuring or other job action affecting 2 or more persons (a group termination). 3 To be included in a group termination.
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Does not contain Technical Data. //Mercury Proprietary/No Tech Data// EXHIBIT C CONFIDENTIALITY AGREEMENT
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2 Does not contain Technical Data. //Mercury Proprietary/No Tech Data// 2. I will fully and promptly disclose to MERCURY or its designees any and all INVENTIONS or PROPRIETARY INFORMATION, whether or not patentable or copyrightable, conceived or developed by me solely or jointly with others during my employment with MERCURY. I further agree to keep adequate records of any INVENTIONS, PROPRIETARY INFORMATION and TRADE SECRETS to which I contribute during my employment. 3. I agree that I will not, during the course of my employment with MERCURY, (a) make any contributions to open-source projects without obtaining approval from my manager in advance and in writing, which approval shall not be unreasonably withheld if such contributions are determined by MERCURY to be unrelated to MERCURY’s lines of business, or (b) use any open-source software, source code, information, or other intellectual property in the performance of my duties at MERCURY, except as may be expressly permitted by XXXXXXX’s Third-Party Source Code Policy. 4. I acknowledge that all work performed by me is on a work-for-hire basis. I hereby assign to MERCURY or its successor in interest, all of my rights, titles, and interests in all INVENTIONS, in all of XXXXXXX’s PROPRIETARY INFORMATION, and in all intellectual property rights in or related to any of the foregoing, including any related patents, patent applications, trademarks and trademark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions, and all claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation or dilution of any INVENTIONS and the right to sue and recover for past infringements or misappropriations or dilutions of such INVENTIONS). I will, either during my employment with MERCURY or after my employment with MERCURY, without further compensation, do all lawful things, including without limitation rendering assistance and executing and delivering appropriate documents, as requested by XXXXXXX, to obtain and maintain patents, design patents, copyrights, trade names, and trademarks in the United States and in all foreign countries on and for any and all INVENTIONS, PROPRIETARY INFORMATION, and intellectual property rights. Any modifications to the rights and obligations established under this paragraph must be authorized in writing by XXXXXXX’s Board of Directors or General Counsel. In the event that XXXXXXX is unable, after reasonable effort, to secure my signature on any document that is required to enable MERCURY to apply for, prosecute, or obtain the issuance of any patent, copyright, trademark, trade name, trade secret, or other right of protection relating to an INVENTION, whether because of my physical or mental incapacity or for any other reason whatsoever, I hereby irrevocably designate and appoint XXXXXXX and its authorized officers and agents as my agent and attorney-in-fact, to act on my behalf to execute and file any such document or documents and to take all other lawfully permitted actions in order to further the application for, or the prosecution or issuance of, patents, copyrights, trademarks, trade names, trade secrets, or other rights of protection relating to such INVENTION with the same legal force and effect as if such document or documents were executed by me. If I use any PRIOR INVENTIONS in the course of my employment or incorporate any PRIOR INVENTIONS in any product, service or other offering of MERCURY, I hereby grant MERCURY a non-exclusive, royalty-free, perpetual and irrevocable, worldwide right to use and sublicense the use of such PRIOR INVENTIONS for the purpose of developing, marketing, selling and supporting MERCURY technology, products and services, either directly or through multiple tiers of distribution, but not for the purpose of marketing PRIOR INVENTIONS separately from MERCURY products or services. 5. At no time during my employment with MERCURY will I be employed by, render services for, or act on behalf of any person, company, or other entity that is engaged in a business or activity that is similar to, or competitive with, that of MERCURY, or with any business that is a supplier to or a customer of MERCURY, unless such employment, services, or action has been approved in writing by MERCURY’s Board of Directors or General Counsel. I further agree that during my employment with MERCURY and for one year thereafter I will not, directly or indirectly, (a) recruit, solicit for employment, or induce or divert any MERCURY associate to terminate his or her employment with MERCURY, or take any action to assist another party to so recruit, solicit, induce, or divert any such associate (provided however, that the foregoing clause shall not prohibit the solicitation or employment of a MERCURY associate responding to a general solicitation (e.g., advertisement) not specifically directed at any such associate), or (b) call upon, solicit, divert, or take away any of the customers, business, or prospective customers of MERCURY or any of its suppliers, provided that I had direct or otherwise substantial involvement with such customers, business, prospective customers, or suppliers, as the case may be. With respect to prospective customers, “direct or otherwise substantial involvement” shall include without limitation identifying them as prospects. I acknowledge that the activities carried on by MERCURY and its affiliates have worldwide business and commercial implications for MERCURY without any geographic limitation. I understand and agree that the non-competition and non- solicitation provisions in this section are necessary for the protection and benefit of MERCURY because of (a) my position with MERCURY, (b) the training that I have received at MERCURY’s expense, and (c) my access to XXXXXXX’s PROPRIETARY INFORMATION. I further agree that XXXXXXX would be irreparably harmed in the event of any breach of these provisions, and that money damages would not be an adequate remedy. Accordingly, in addition to any other remedies available at law or in equity, MERCURY shall be entitled to obtain injunctive relief in the event of any such breach or threatened breach. 6. At no time during my employment with MERCURY will I own any stock of, or derive any direct or indirect financial benefit from, any corporation or other entity engaged in activities that are competitive with those of MERCURY, unless such ownership
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3 Does not contain Technical Data. //Mercury Proprietary/No Tech Data// or interest has first been approved in writing by either XXXXXXX’s Chief Executive Officer or General Counsel. The following investments shall not be deemed to violate the restrictions set forth in the preceding sentence: (a) the ownership of less than a one percent (1%) interest in a corporation or other entity whose shares are traded in a recognized stock exchange or traded in the over-the-counter market, even though that corporation or other entity may be engaged in activities that are competitive with those of MERCURY; (b) the ownership of any interest in any mutual fund, or the ownership of less than a five percent (5%) passive interest in any investment partnership or limited liability company that invests in a corporation or other entity engaged in activities that are competitive with those of MERCURY; and (c) any investments made by third-party money managers on my behalf, provided that I have no role in the selection or management of such investments. I will be subject to and abide by any policies that MERCURY may adopt regarding conflict of interest, whether consistent with or in replacement of the above, and all other policies of MERCURY. 7. I agree, during my employment with MERCURY and thereafter, to refrain from Disparaging (as defined below) MERCURY and its affiliates, including any of its services, technologies or practices, or any of its directors, officers, agents, representatives or equityholders, either orally or in writing. Nothing in this paragraph shall prohibit me from making truthful statements that are reasonably necessary to comply with applicable law, regulation or legal process, or to defend or enforce my rights under this Agreement. Furthermore, nothing in this paragraph shall prohibit me from making any disclosures as set forth in Section 8. For purposes of this Agreement, “Disparaging” means making remarks, comments or statements, whether written or oral, which could reasonably be seen to impugn the character, integrity, reputation or abilities of the person, entity or thing about which the remark, comment or statement is made. 8. Notwithstanding anything to the contrary herein, I acknowledge that XXXXXXX has provided me with the following notice of immunity rights in compliance with the requirements of the Defend Trade Secrets Act of 2016: (i) I shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of Proprietary Information that is made in confidence to a federal, state or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, (ii) I shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of Proprietary Information that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and (iii) if I file a lawsuit for retaliation by XXXXXXX for reporting a suspected violation of law, I may disclose the Proprietary Information to my attorney and use the Proprietary Information in the court proceeding, if I file any document containing the Proprietary Information under seal, and do not disclose the Proprietary Information, except pursuant to court order. Notwithstanding anything to the contrary contained herein, nothing in this Agreement prohibits me from: (A) communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency, including without limitation the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, or the U.S. National Labor Relations Board, without notifying or seeking permission from MERCURY, (B) exercising any rights I may have under Section 7 of the U.S. National Labor Relations Act, such as the right to engage in concerted activity, including collective action or discussion concerning wages or working conditions, (C) testifying under oath pursuant to legal process or otherwise making any disclosure of information required by law, or (D) discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that I have reason to believe is unlawful. I do not need the prior authorization of MERCURY to make any such reports or disclosures and I shall not be not required to notify MERCURY that such reports or disclosures have been made. 9. This Agreement does not constitute, and shall not be deemed to constitute, a promise or guarantee of employment. I understand and agree that, except as may be provided in a written agreement signed by a duly authorized officer or director of MERCURY and me, my employment with XXXXXXX is at will. Accordingly, my employment can be terminated at any time, without cause or notice, at my option or XXXXXXX’s option. The at-will nature of my employment also means that I can be transferred or demoted, and my job title, compensation, benefits and other terms and conditions of employment can be reduced, at any time with or without cause. I acknowledge that such changes shall not affect the enforceability of any terms of this Agreement. My agreements not to use or disclose PROPRIETARY INFORMATION of MERCURY and to protect XXXXXXX’s property and interests in any INVENTIONS and/or PROPRIETARY INFORMATION shall survive the termination of my employment with MERCURY, regardless of the manner of such termination, and shall be binding upon my heirs, executors, administrators, legal representatives, and assigns. 10. Any reference to MERCURY herein shall include Mercury Systems, Inc., its subsidiaries and affiliates, and their respective successors and assigns. This Agreement may be modified only by an agreement in writing that is signed by XXXXXXX’s General Counsel. This entire Agreement shall be binding upon my heirs, executors, administrators, legal representatives, and assigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Virginia applicable to agreements made and to be performed entirely within the State of Virginia, and without regard to any provisions or principles of such laws relating to conflicts of law. Any action, suit, or other legal proceeding brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts located in the State of Virginia. In any such action, I submit to the personal jurisdiction of the state and federal courts located in the State of Virginia and waive any objection to venue in such courts.
![slide27](https://www.sec.gov/Archives/edgar/data/1049521/000104952123000029/exhibit10027.jpg)
4 Does not contain Technical Data. //Mercury Proprietary/No Tech Data// 11. I agree not to disclose to MERCURY or use in my work at MERCURY any TRADE SECRETS of any of my prior employers or other third parties (except those third parties that have supplied TRADE SECRETS to MERCURY for use in connection with its business). I agree not to bring on to XXXXXXX’s premises any documents, items, or other materials containing TRADE SECRETS of any of my prior employers or other third parties (except those third parties that have supplied TRADE SECRETS to MERCURY for use in connection with its business). 12. I hereby represent, except as I have fully disclosed previously in writing to MERCURY, that my employment with XXXXXXX will not conflict with and will not be constrained by any prior employment agreement, consulting agreement, or other business arrangement to which I am (or was) a party. I understand that this includes (by way of non-limiting example) agreements or arrangements which have ongoing non-competition and non-solicitation obligations. All such existing agreements or arrangements are listed below. If not applicable, check “none” below. If additional space is required, use a separate sheet. None: ______ 13. I hereby represent that all PRIOR INVENTIONS are listed below. If not applicable, check “none” below. If additional space is required, use a separate sheet. None: ______ 14. MERCURY’s facilities contain export-controlled information and items as well as U.S. government-classified information and items. MERCURY is required by law to ensure that unauthorized persons do not have access to such information and items. To enable MERCURY to comply with all applicable requirements relating to such matters, MERCURY reserves the right, at any time while you are on XXXXXXX’s premises, to search your belongings and to require that you empty any pockets and other concealed areas of your clothing and display the contents of those pockets and areas to MERCURY’s authorized officers and agents. 15. I agree that in the event of a breach or threatened breach of the provisions of this Agreement, XXXXXXX’s remedies at law would be inadequate, and MERCURY shall be entitled to an injunction to enforce such provisions (without any bond or other security being required), but nothing herein shall be construed to preclude MERCURY from pursuing any remedy at law or in equity for any breach or threatened breach. 16. If any provision of this Agreement is wholly or partially unenforceable for any reason, such unenforceability shall not affect the enforceability of the balance of this Agreement, and all of the remaining provisions shall continue in full force and effect. 17. No waiver by MERCURY of a breach by me of any provision of this Agreement shall (a) constitute a waiver or relinquishment of such provision in the future, or (b) constitute a waiver of or consent to any subsequent breach by me of such provision. 18. I agree to abide by the requirements of the U.S. government with regard to export regulations as implemented by MERCURY in its export compliance program, including any obligations required therein for foreign nationals as applicable, to the extent that I am trained and involved in any products, design, services, or documentation exported, or considered a deemed export, by MERCURY. 19. The restrictions on confidentiality and non-disclosure as set forth in this Agreement do not prohibit or otherwise restrict me from lawfully reporting information relating to fraud, waste, and abuse in the Federal Government procurement process to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information. SIGN NAME: DATE: PRINT NAME: XXXXXXX X. XXXXXXXX