Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the 3
day of August, 2005 (the "Effective Date"), by and between Spirit AeroSystems,
Inc. a Delaware corporation (the "Company"), and Xxxxxx Xxxxxxx ("Executive").
Recitals
WHEREAS, Executive has agreed to become the Chief Financial Officer of the
Company pursuant to the terms and conditions of this Agreement; and
WHEREAS, the parties desire to enter into this Agreement, setting forth the
terms and conditions for the employment relationship of the Executive with the
Company during the Employment Period (as hereinafter defined).
NOW THEREFORE, in consideration of the foregoing, and the representations,
warranties, and covenants hereinafter, the parties hereto agree as follows:
1. Employment. At all times during the Employment Period (as hereinafter
defined), the Company shall employ Executive in the capacity of Chief Financial
Officer of the Company. In such capacity, Executive shall devote his full
business time and professional efforts to such position, shall be assigned and
undertake those duties and tasks as are appropriate for a person in such
position, which may include serving as a member of the Board of Directors of the
Company (the "Board") or as an executive officer or member of the board of
directors of Spirit AeroSystems Holdings, Inc. ("Parent") or any subsidiary of
the Company or the Parent (the Parent, the Company, and any such subsidiaries,
the "Affiliated Companies") at the Company's reasonable request, and shall
exercise such authority as is customarily exercised by a Chief Financial Officer
of the Company subject to the overall supervision of the Board and the Chief
Executive Officer of the Company, and shall comply with all Company policies,
including, but not limited to, those dealing with ownership of inventions,
patents, and other intellectual property.
2. Employment Period. The term of this Agreement shall commence on August
15, 2005, or such other date as the parties may mutually agree, but not later
than September 12, 2005 (the "Commencement Date"), and shall expire, subject to
earlier termination of employment as hereinafter provided, on the third
anniversary of the Commencement Date ("Employment Period"); provided, however,
that on the second anniversary of the Commencement Date and each anniversary
thereafter of such date, the Employment Period shall automatically be extended
for an additional one (1) year period unless prior thereto: (a) either party has
given written notice to the other that such party does not wish to extend the
term of this Agreement, or (b) the parties have agreed to otherwise extend this
Agreement.
3. Compensation. Except as otherwise provided for herein, throughout the
Employment Period the Company shall pay or provide Executive with the following,
and
Executive shall accept the same, as compensation for the performance of his
undertakings and the services to be rendered by him throughout the Employment
Period under this Agreement, including, without limitation, any services as a
member of the Board (it being understood and agreed that Executive will not
receive any additional compensation for serving as a member of the Board or as
an officer or member of the board of directors of any other Affiliated Company
at the Company's reasonable request):
(a) Annual Compensation.
(i) Base Salary: Four Hundred Thirty-Two Thousand Five Hundred
Dollars ($432,500.00) per year (the "Base Salary"), payable in accordance
with the Company's usual pay practices, to be reviewed annually by the
Board (or, at the Board's direction, a committee of the Board) but the Base
Salary may not be reduced by the Board to an amount that is less than the
highest amount Executive has attained on an annualized basis, unless such
reduction is part of (and no greater than the percentage of) a general
salary reduction applied to all senior executives of the Company as a
group. For purposes of the Agreement, the term "senior executives" shall
mean, with respect to the Company, the highest paid ten officers of the
Company. Notwithstanding the foregoing, for the portion of the Employment
Period prior to September 12, 2005 (if any), Executive shall be paid a pro
rated Base Salary, based on the actual number of days Executive is
performing services for the Company at its offices in Wichita, Kansas.
(ii) Annual Incentive Compensation: In addition to Base Salary,
Executive shall be provided target incentive compensation (either in cash
or common stock of the Parent or any combination of the foregoing, as
specified by the Board of Directors of the Parent or other administrative
committee of the Company's Short-Term Incentive Plan, as in effect from
time to time (the "STIP")) pursuant to the terms and conditions of the
STIP; provided, however, that at least 50% of any benefits payable to
Executive pursuant to the STIP each year shall be paid to Executive in
cash. The first year incentives shall include 160% of Base Salary if target
incentives are reached and 320% of Base Salary upon achievement of
outstanding goals. For 2005, Executive shall receive a prorated bonus based
on the number of days worked.
(b) Benefit Plans. Executive shall also participate in the Company's
other employee benefit plans, policies, practices, and arrangements in which all
senior executives are eligible to participate, or plans and arrangements
substituted therefor or in addition thereto, including without limitation any
defined benefit retirement plan, excess or supplementary plan, profit sharing
plan, savings plan, health and dental plan, disability plan, survivor income and
life insurance plan, executive financial planning program, other arrangement, or
any successors thereto, the Executive Investment Plan ("EIP"), STIP, and such
other benefit plans, any and all of which may be amended by the Company from
time to time, (collectively hereinafter referred to as the "Benefit Plans");
provided, however, that Executive shall not participate in any of the Benefit
Plans unless and until Executive commences performing services for the Company.
The Executive's entitlement to any other compensation or benefits shall be
determined in accordance with the terms and conditions of the Benefit Plans and
other applicable programs, practices, and arrangements then in effect.
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(c) Vacation. From and after September 12, 2005, Executive shall have
vacation of no less than four (4) weeks per year, and all paid holidays given by
the Company to its executive officers.
(d) Fringe Benefits. All fringe benefits and perquisites typically
offered to senior executives of the Company, all in accordance with the
Company's policies as the same may be amended from time to time.
(e) Withholding Taxes. Except as provided in Section 5(a)(vi), the
Company shall have the right to deduct from all payments made to Executive
hereunder any federal, state, or local taxes required by law to be withheld with
respect to such payments.
(f) Expenses. During the Employment Period, the Company shall promptly
pay or reimburse Executive for all reasonable out-of-pocket expenses incurred by
Executive in the performance of duties hereunder in accordance with the
Company's policies and procedures then in effect.
4. Office. Throughout the Employment Period the Company shall provide an
office to Executive in Wichita, Kansas, the location and furnishings of which
shall be equivalent to or better than the offices provided to other senior
executives of the Company at the primary location of Executive's employment, and
the Company shall provide secretarial services and other administrative services
to Executive that shall be equivalent to or better than the secretarial services
and other administrative services provided to other senior executives of the
Company.
5. Transition Benefits. In consideration of Executive's agreement to accept
employment with the Company and relocate to Wichita, Kansas, the Company will
provide Executive with the following benefits in connection with such
transition.
(a) Relocation Benefits. The Company will provide Executive with the
following benefits in connection with Executive's relocation to Wichita, Kansas:
(i) Reimbursement of Executive's reasonable expenses of moving
Executive and Executive's family and tangible personal property to Wichita,
Kansas.
(ii) Reimbursement of the reasonable and customary brokerage
commission incurred upon sale of Executive's home in Charlotte, North
Carolina.
(iii) Reimbursement of Executive's reasonable temporary living
expenses in Wichita, Kansas, including, without limitation, all commuting
expenses of Executive and Executive's spouse between North Carolina and
Kansas and all home, furniture, and vehicle rental expenses for Executive
and Executive's spouse, for the lesser of (i) the period until Executive
sells his house in Charlotte, North Carolina, or (ii) twenty-four (24)
months after the Commencement Date, it being understood that Executive
shall use commercially reasonably efforts to sell Executive's house in
Charlotte, North Carolina in a timely manner.
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(iv) Reimbursement of Executive's reasonable legal fees incurred
in connection with Executive's relocation to Wichita, Kansas and the
negotiation of Executive's employment agreement with the Company.
(v) Payment of a one-time cash payment equal to two (2) months of
Executive's Base Salary to reimburse Executive for all other miscellaneous
expenses associated with Executive's relocation to Wichita, Kansas, it
being understood that such payment, along with the other amounts
specifically set forth in this Section 5(a), shall represent all of the
benefits to be provided by the Company in connection with Executive's
relocation to Wichita, Kansas.
(vi) Payment of all taxes associated with Executive's receipt of
the foregoing benefits so that after payment of all taxes by Executive,
Executive shall have the total amount of such benefits. The Executive shall
take such steps as the Company may reasonably request to substantiate any
of the foregoing expenses.
(b) Benefits in Lieu of Foregone Executive Compensation. In
consideration of all executive compensation benefits foregone by Executive upon
termination of Executive's employment with The Xxxxxxxx Corporation
("Xxxxxxxx"), including, but not limited to, benefits under any supplemental
executive retirement plan, excess benefit plan, benefit restoration plan,
restricted stock plan, option plan, or any other plan, agreement, or arrangement
providing executive compensation benefits, the Company will make a one-time cash
payment to Executive of Four Million One Hundred Thousand Dollars
($4,100,000.00), it being understood that this amount has been determined on the
assumption that Xxxxxxxx will not withhold payment of Executive's pro rated 2005
performance bonus and/or earned performance shares. Executive will vigorously
pursue payment from Xxxxxxxx of both Executive's pro rated 2005 performance
bonus and Executive's earned performance shares (collectively, the "Xxxxxxxx
Amounts"), it being understood, however, that Executive may, but shall not be
required to, commence legal action against Xxxxxxxx (other than exhaustion of
administrative remedies, if any) in order to obtain payment of the Xxxxxxxx
Amounts by Xxxxxxxx. Failing payment of the Xxxxxxxx Amounts by Xxxxxxxx,
however, the Company will additionally compensate Executive for the Xxxxxxxx
Amounts.
6. Termination. This Agreement shall terminate upon the following
circumstances:
(a) Without Cause. At any time at the election of either Executive or
Company for any reason or no reason, without cause. For purposes of this
Agreement, termination of the Agreement by the Company without cause shall
include, without limitation:
(i) Constructive Discharge. Executive's duties and
responsibilities are materially and adversely altered and/or, except as
provided in Section 3(a)(i), Executive's Base Salary is materially reduced
by the Company, in either case without Executive's consent, and/or the
Company commits a material breach of this Agreement.
(ii) Change in Control. Following a change in control of the
Company (as determined under the EIP), Executive (A) is not offered
continued employment with the Company (or its successor) in the position of
Chief Financial Officer having duties,
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compensation, and geographic location that are, in all material respects,
at least as favorable as the position held by Executive with the Company at
the time of the change in control (a "Comparable Position"), or (B)
continues to perform services for the Company (or its successor) after the
change in control but, within twelve months following the change in
control, is assigned to a position that is not a Comparable Position.
(b) Cause. At any time at the election of Company for Cause. "Cause"
for this purpose shall mean Executive committing a material breach of this
Agreement or acts involving moral turpitude, including fraud, dishonesty,
disclosure of confidential information, or the conviction of a felony, or direct
and deliberate acts constituting a material breach of his duty of loyalty to
Company. "Cause" for this purpose also shall mean Executive willfully or
continuously refusing to, or willfully failing to, perform the material duties
reasonably assigned to him by the Board that are consistent with the provisions
of this Agreement and not resulting from a Disability, unless such refusal or
failure is cured by Executive within a reasonable time not to exceed 30 days
after written notice to the Executive by the Company. Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to Executive a copy of a resolution, duly adopted by the Board.
(c) Disability or Death. Executive's being unable to render the
services required to be rendered by him during the Employment Period for a
period of one hundred eighty (180) days during any twelve-month period
("Disability") or Executive's death.
7. Effect of Termination.
(a) Voluntary Termination. If Executive's employment is voluntarily
terminated by Executive, the Company shall pay Executive's Base Salary through
point of termination and pay one half (1/2) a pro rated bonus under the STIP for
the time worked at the time incentive compensation would otherwise be payable
under the STIP for the year of termination on the basis of the Company's
performance relative to target achieved for that full year, provided that,
following termination of Executive's employment, all benefits payable to
Executive under the STIP shall be paid in cash. With regard to the EIP,
Executive shall not be credited with any additional years of service for vesting
purposes following voluntary termination of employment by Executive. Except as
may otherwise be expressly provided in this Agreement, in any Benefit Plan or
other agreement between the Company and Executive, Company shall have no further
obligation to Executive other than to reimburse Executive for reasonable
business expenses incurred prior to termination.
(b) Termination for Cause. If Executive's employment is terminated by
Company for Cause, the Company shall pay Executive's Base Salary through point
of termination. With regard to the EIP, Executive shall not be credited with any
additional years of service for vesting purposes following termination of
employment and shall acquire an interest in shares under the EIP only to the
extent provided therein. Except as may otherwise be expressly provided in this
Agreement, in any Benefit Plan or other agreement between the Company and
Executive, Company shall have no further obligation to Executive other than to
reimburse Executive for reasonable business expenses incurred prior to
termination.
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(c) Termination By Expiration of Agreement. If Executive's employment
is terminated because of the expiration of the Employment Period without
renewal, Company shall (i) continue to pay Executive his Base Salary in effect
immediately prior to the end of the Employment Period for a period (the "Expiry
Period") equal to the greater of: (A) 12 months from the end of the Employment
Period, or (B) the duration of the Non-Competition Period (as defined below);
(ii) with regard to the STIP, pay a bonus at the time incentive compensation
would otherwise be payable under the STIP for the year of termination on the
basis of the Company's performance relative to target achieved for that full
year and, in respect of the remainder of the Expiry Period, pay a bonus at the
time incentive compensation would otherwise be payable under the STIP for the
year or years (or part thereof) in the remaining portion of the Expiry Period on
the basis that the Company achieved target for such year or years, but pro rated
for the portion of each such year or years that fell within such remaining
portion of the Expiry Period, provided that, following termination of
Executive's employment, all benefits payable to Executive under the STIP shall
be paid in cash, and provided further that Executive shall acquire 100% of the
interest in any shares previously granted to Executive under the STIP in which
Executive has not yet acquired an interest pursuant to the STIP at the time of
termination of Executive's employment; and (iii) continue to pay the Company's
portion of the premium costs or other costs of coverage of medical benefits of
Executive and, if Executive's family has medical benefits with the Company at
the time Executive's employment terminates, Executive's family that portion of
such coverage paid by the Company for other executive officers at the level of
coverage elected by Executive during his employment) after termination during
the Expiry Period or until Executive commences full-time employment in an
executive position with another employer, if earlier.
In addition to the foregoing and notwithstanding any conflicting position
of any other agreement (including, but not limited to, that certain Investor
Stockholders Agreement, dated as of June 16, 2005, by and between Spirit
AeroSystems Holdings, Inc. (f/k/a Mid-Western Aircraft Systems Holdings, Inc.)
and its stockholders) (the "Stockholders Agreement"), upon termination of
Executive's employment because of expiration of the Employment Period without
renewal, Executive shall have the option to sell to the Company (the "Put
Option") and the Company shall have the option to purchase from Executive (the
"Call Option"), in either case for a period of 180 days following expiration of
the Employment Period, all or any portion of the shares of stock in the Parent
held by Executive at that time (which will not include shares granted pursuant
to the EIP Plan in which Executive has not yet acquired an interest) for an
amount equal to the Fair Market Value (as defined below) of such shares as of
the date the Put Option or Call Option is exercised (or, if both such options
are exercised at different times but with respect to the same shares, as of the
earlier of the two exercise dates). For this purpose, "Fair Market Value" shall
mean (i) if shares of stock in the Parent are not listed or quoted on a
nationally recognized market or exchange, the amount determined by the Board of
Directors of the Parent, in good faith, taking into account the value of
comparable companies, historical performance of the Company and without regard
to minority discounts, and reasonably anticipated future performance of the
Company, and (ii) if shares of stock in the Parent are listed or quoted on a
nationally recognized market or exchange, the closing price per share of such
stock on the date of the exercise of the Put Option or Call Option, as
applicable (or the next following business day, if such option is not exercised
on a business day). An option described herein shall be exercisable only upon
written notice from the exercising party to the other party given within the
180-day option period. The purchase price for the shares shall be payable in
cash in a single
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lump sum not later than thirty (30) days after the applicable exercise date;
provided, however, that in the case of exercise of the Put Option, the Company
will not pay the purchase price in cash if, at the time payment is due, there is
an existing and continuing default or event of default under any of the
Company's material debt obligations or payment of the purchase price would cause
a default or event of default under any of the Company's material debt
obligations. In the event the purchase price for the shares may not be paid
hereunder in cash, the Company will pay the purchase price by issuance of a
promissory note, which shall accrue interest at the prime rate, on terms
acceptable to the Company's lenders, payment with respect to which shall be made
(in whole or in part) at the earlier of (i) maturity, or (ii) the earliest date
on which (a) no default or event of default under any of the Company's material
debt obligations exists or is continuing, and (b) payment may be made without
causing a default or event of default under any of the Company's material debt
obligations. The Company may, with Executive's prior written consent (which
consent shall not be unreasonably withheld), assign its obligations under this
paragraph to any affiliate of the Company; provided, however, that such
obligations may be assigned or transferred without Executive's prior written
consent pursuant to a merger or consolidation in which the Company is not the
continuing entity or a sale, liquidation, or other disposition of all or
substantially all of the Company's assets, provided that the assignee or
transferee is the successor to all or substantially all of the Company's assets
and assumes the liabilities, obligations, and duties of the Company under this
Agreement, either contractually or as a matter of law.
Except as may otherwise be expressly provided in this Agreement, in any
Benefit Plan, or other agreement between the Company and Executive, Company
shall have no further obligation to Executive other than to reimburse Executive
for reasonable business expenses incurred prior to termination.
(d) Termination Without Cause. If Executive's employment is terminated
by Company prior to the expiration of the Employment Period for any reason other
than Cause and for so long as Executive is not in breach of his continuing
obligations under Sections 8 and 9, Company shall (i) continue to pay Executive
his Base Salary in effect immediately prior to the end of the Employment Period
for a period of 24 months after the date of termination (the "Termination
Period"); (ii) with regard to the STIP, pay a bonus at the time incentive
compensation would otherwise be payable under the STIP for the year of
termination on the basis of the Company's performance relative to target
achieved for the full year and, in respect of the remainder of the Termination
Period, pay a bonus at the time incentive compensation would otherwise be
payable under the STIP for the year or years (or part thereof) in the remaining
portion of the Termination Period on the basis that the Company achieved target
for such year or years, but pro rated for the portion of each such year or years
that fell within such remaining portion of the Termination Period, provided
that, following termination of Executive's employment, all benefits payable to
Executive under the STIP shall be paid in cash, and provided further that
Executive shall acquire 100% of the interest in any shares previously granted
to Executive under the STIP in which Executive has not yet acquired an interest
pursuant to the STIP at the time of termination of Executive's employment; (iii)
with regard to the EIP, Executive shall be credited with years of service for
vesting purposes for the time that would have otherwise been remaining in the
Employment Period but for the early termination, provided that in no event shall
Executive be credited with fewer than four years of service for time-based
vesting purposes under the EIP following termination of Executive's employment
without cause;
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and provided further that in the event four (but not five) actual years of
service have been credited to Executive for time-based vesting purposes under
the EIP at the time of Executive's termination of employment without cause,
Executive shall be credited with a partial fifth year of service based on the
actual number of whole months in such year worked prior to termination of
employment, and the percentage under Section 5.02.C. of the EIP shall be
adjusted proportionately to take into account such partial year of service; (iv)
with regard to the EIP, in the event of a liquidity event (as defined in the
EIP), if the return on invested capital (as defined in the EIP) is not less than
0% then Executive shall be entitled to the greater of (A) or (B) where: (A)
equals the interest in shares acquired by applying the provisions of the EIP
taking into account provision 7(d)(iii) above and (B) equals the interest in the
shares acquired by applying the provisions of the EIP where the applicable
percentage under Section 5.02.A. of the EIP is 25% and the applicable percentage
under Section 5.02.C. of the EIP is 100%; and (v) continue to pay the Company's
portion of the premium costs or other costs of coverage of medical and life
insurance benefits of Executive and, if Executive's family is covered for such
benefits with the Company at the time Executive's employment terminates,
Executive's family (i.e., that portion of such coverage paid by the Company for
other executive officers at the level of coverage elected by Executive during
his employment), subject to the terms and provisions of any applicable benefit
plan and subject to approval by any applicable insurance carrier, after
termination for the duration of the Termination Period or until Executive
commences full time employment in an executive position with another employer,
if earlier. In the event coverage is not approved by insurance carrier, the
Company will obtain coverage for Executive and Executive's family that is at
least as favorable as the coverage Executive had before termination.
In addition to the foregoing, upon termination without cause, Executive and
the Company shall have the Put Option and Call Option (respectively) described
in Section 7(c) hereof.
Except as may otherwise be expressly provided in this Agreement, in any
Benefit Plan, or other agreement between the Company and Executive, Company
shall have no further obligation to Executive other than to reimburse Executive
for reasonable business expenses incurred prior to termination.
(e) Disability. If this Agreement is terminated because of Executive's
Disability, the Company shall continue to pay (in addition to disability
payments) the following until Employee reaches the age of sixty-five (65) or
until Executive commences full-time employment in an executive position with
another employer, if earlier: Base Salary and the Company's portion of the
premium costs or other costs of coverage of medical and life insurance benefits
of Executive and, if Executive's family is covered for such benefits with the
Company at the time Executive's employment terminates, Executive's family (i.e.,
that portion of such coverage paid by the Company for other executive officers
at the level of coverage elected by Executive during his employment), subject to
the terms and provisions of any applicable benefit plan and subject to approval
by any applicable insurance carrier. In the event coverage is not approved by
insurance carrier, the Company will obtain coverage for Executive and
Executive's family that is at least as favorable as the coverage Executive had
before termination. With regard to the STIP, Executive shall acquire 100% of the
interest in any shares previously granted to Executive under the STIP in which
Executive has not yet acquired an interest pursuant to the STIP at the time of
termination of Executive's employment. With regard to the EIP, Executive
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shall be credited with five (5) years of service for time-based vesting purposes
under the EIP following termination of Executive's employment because of
Executive's Disability.
In addition to the foregoing, upon termination due to Disability, Executive
and the Company shall have the Put Option and Call Option (respectively)
described in Section 7(c) hereof.
(f) Death. If Executive's employment is terminated because of
Executive's death, Company shall (i) continue to pay Executive's Base Salary
that would have otherwise been paid during the remaining Employment Period, but
for the early termination; (ii) with regard to the STIP, pay a bonus at the time
incentive compensation would otherwise be payable under the STIP for the year of
termination on the basis of the Company's performance relative to target
achieved for the full year, and one additional year at target, provided that,
following termination of Executive's employment, all benefits payable to
Executive (or Executive's beneficiary) under the STIP shall be paid in cash, and
provided further that Executive shall acquire 100% of the interest in any shares
previously granted to Executive under the STIP in which Executive has not yet
acquired an interest pursuant to the STIP at the time of termination of
Executive's employment; (iii) with regard to the EIP, credit Executive with five
(5) years of service for time-based vesting purposes under the EIP following
termination of Executive's employment because of Executive's death; and (iv)
continue to pay the Company's portion of premium costs or other cost or coverage
of medical benefits for Executive's family, if Executive's family has medical
benefits with the Company at the time Executive's employment terminates, for the
remaining Employment Period (ignoring early termination), subject to the terms
and provisions of any applicable benefit plan and subject to approval by any
applicable insurance carrier. In the event coverage is not approved by insurance
carrier, the Company will obtain coverage for Executive's family that is at
least as favorable as the coverage Executive had before termination.
In addition to the foregoing, upon termination due to death, Executive's
personal representative shall have the Put Option described in Section 7(c)
hereof and the Company shall have the Call Option described in Section 7(c)
hereof.
Except as may otherwise be expressly provided in this Agreement, in any
Benefit Plan, or other Agreement between the Company and Executive, Company
shall have no further obligation to Executive other than to reimburse Executive
for reasonable business expenses incurred prior to termination. Amounts payable
shall be paid to Executive's designated beneficiary under this Agreement or, if
Executive has not designated a beneficiary in writing to the Company, to the
personal representative(s) of Executive's estate. For purposes of this Section,
Executive may designate an inter vivos revocable living grantor trust as
Executive's beneficiary.
8. Covenant Not to Compete. Without the consent of the Company, Executive
shall not directly or indirectly at any time during the Employment Period and
for a period of two (2) years thereafter, unless a shorter period of time is
specified in writing by Company to Executive within 30 days following the
termination of employment for any reason (the "Non-Competition Period"): (a)
undertake employment as an owner, director, partner, officer, employee,
affiliate, or consultant with any business entity directly engaged principally
in the manufacture of
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aerostructures; provided, however, that Executive shall not be deemed to have
breached this undertaking if his sole relation with such entity consists of his
holding, directly or indirectly, of not greater than two percent (2%) of the
outstanding securities of a company listed on or through a national securities
exchange; (b) undertake the solicitation of any customer of the Company, or the
Company's parent, or any subsidiary of the Company or Company's parent, except
for the benefit of the Company; or (c) contact any employee of the Company, the
Company's parent, or any subsidiary of the Company or Company's parent for the
purpose of hiring, diverting, or otherwise soliciting employment.
Notwithstanding the above, Executive shall not be deemed in violation of this
Section 8 if Executive undertakes employment with a competitor of the Company
but does not participate in the activities of the competitor that compete with
the Company (e.g., working in a division of a competing company where that
division sells non-competitive products).
9. Confidential Information. Without the express written consent of the
Company, Executive shall not at any time (either during or after the termination
of this Agreement for any reason) use (other than for the benefit of the
Company) or disclose to any other business entity proprietary or confidential
information concerning the Company, the Company's parent, or any of their
affiliates, or the Company's, the Company's parent, or any of their affiliates'
trade secrets or inventions of which Executive has gained knowledge during his
employment with the Company. This Section 9 shall not apply to any such
information that: (a) Executive is required to disclose by law; or (b) has been
otherwise disseminated, disclosed, or made available to the public.
10. Effect of Breach. Executive agrees that a breach of Sections 8 or 9
cannot adequately be compensated by money damages and, therefore, Company shall
be entitled, in addition to any other right or remedy available to it
(including, but not limited to, an action for damages), to an injunction
restraining such breach or a threatened breach and to specific performance of
either such provision, and Executive hereby consents to the issuance of such
injunction and to the ordering of specific performance.
11. Security Clearances. Executive covenants and agrees that Executive
will, at all times during the Employment Period, use his best efforts to obtain
and/or maintain appropriate United States security clearances. No breach of this
Section 11 shall be deemed to occur during the period that Executive's initial
application for United States security clearance is pending, unless and until
such application is denied. If Executive's employment with the Company is
terminated by the Company due to loss of, or failure to obtain, United States
security clearances, such termination shall be treated for purposes of this
Agreement as termination without cause; provided, however, that nothing in this
Section 11 shall prevent the Company from terminating Executive's employment for
Cause if a direct factor causing the loss of, or failure to obtain, such
security clearances is itself a basis for terminating Executive's employment for
Cause.
12. Alternative Dispute Resolution.
(a) Mediation. Executive and the Company agree to submit, prior to
arbitration, all unsettled claims, disputes, controversies,, and other matters
in question between them arising out of or relating to this Agreement (including
but not limited to any claim that the Agreement or any of its provisions is
invalid,, illegal, or otherwise voidable or void) or the
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dealings or relationship between Executive and the Company ("Disputes") to
mediation in Chicago, Illinois and in accordance with the Commercial Mediation
Rules of the American Arbitration Association currently in effect. The mediation
shall be private, confidential, voluntary, and nonbinding. Any party may
withdraw from the mediation at any time before signing a settlement agreement
upon written notice to each other party and to the mediator. The mediator shall
be neutral and impartial. The mediator shall be disqualified as a witness,
consultant, expert, or counsel for either party with respect to the matters in
Dispute and any related matters. The Company and Executive shall pay their
respective attorneys' fee and other costs associated with the mediation, and
Company and Executive shall equally bear the costs and fees of the mediator. If
a Dispute cannot be resolved through mediation within ninety (90) days of being
submitted to mediation, the parties agree to submit the Dispute to arbitration.
(b) Arbitration. Subject to Section 12(a), all Disputes will be
submitted for binding arbitration to the American Arbitration Association on
demand of either party. Such arbitration proceeding will be conducted in
Chicago, Illinois and, except as otherwise provided in this Agreement, will be
heard by one (1) arbitrator in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect. All matters relating to
arbitration will be governed by the federal Arbitration Act (9 U.S.C. Sections 1
et seq.) and not by any state arbitration law. The arbitrator will have the
right to award or include in his award any relief which he deems proper under
the circumstances, including, without limitation, money damages (with interest
on unpaid amounts from the date due); specific performance, injunctive relief,
and of this Agreement, reasonable attorneys' fees and costs, provided that the
arbitrator will not have the right to amend or modify the terms of this
Agreement. The award and decision of the arbitrator will be conclusive and
binding upon all parties hereto, and judgment upon the award may be entered in
any court of competent jurisdiction. Except as specified above, the Company and
Executive shall pay their respective attorneys' fee and other costs associated
with the arbitration, and the Company and Executive shall equally bear the costs
and fees of the arbitrator.
(c) Confidentiality. Executive and Company agree that they will not
disclose, or permit those acting on their behalf to disclose, any aspect of the
proceedings under Section 12(a) and Section 12(b), including but not limited to
the resolution or the existence or amount of any award, to any person, firm,
organization, or entity of any character or nature, unless divulged (i) to an
agency of the federal or state government, (ii) pursuant to a court order, (iii)
pursuant to a requirement of law, (iv) pursuant to prior written consent of the
Company or Executive, or (v) pursuant to a legal proceeding to enforce a
settlement agreement or arbitration award. This provision is not intended to
prohibit nor does it prohibit Executive's or Company's disclosures of the terms
of any settlement or arbitration award to their attorney(s), accountant(s),
financial advisor(s), or family members, provided that they comply with the
provisions of this paragraph.
(d) Injunctions. Notwithstanding anything to the contrary contained in
this Section 12, the Company, and Executive shall have the right in a proper
case to obtain temporary restraining orders and temporary or preliminary
injunctive relief from a court of competent jurisdiction; provided, however,
that Company and Executive must contemporaneously submit the Disputes for
non-binding mediation under Section 12(a) and then for arbitration under
11
Section 12(b) on the merits as provided herein if such Disputes cannot be
resolved through mediation.
(e) Reimbursement of Fees. Company shall reimburse Executive at least
quarterly for seventy-five (75) percent of all attorneys' fees, mediator fees,
and arbitrator fees incurred by Executive, regardless of the outcome of any
proceedings under this Section 12.
13. Notices. All notices required or permitted under this Agreement shall
be in writing, may be made by personal delivery or facsimile transmission,
effective on the day of such delivery or receipt of such transmission, or may be
mailed by registered or certified mail, effective two (2) days after the date of
mailing, addressed as follows:
To the Company:
Spirit AeroSystems, Inc.
Attention: Xxxxxxx X. Xxxxxx, Chief Executive Officer
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
or such other person or address as designated in writing to Executive.
To Executive:
Xxxxxx Xxxxxxx
at his last known residence address or to such other address as designated
by him in writing to Company.
14. Successors. Neither this Agreement nor any right or interest therein
shall be assignable or transferable (whether by pledge, grant of a security
interest, or otherwise) by Executive or Executive's beneficiaries or legal
representatives, except by will, by the laws of descent and distribution, or
inter vivos revocable living grantor trust as Executive's beneficiaries. This
Agreement shall be binding upon and shall inure to the benefit of Company, its
successors and assigns, and Executive and shall be enforceable by them and
Executive's heirs, legatees, legal personal representatives. The Company may not
assign its rights or obligations under this Agreement without Executive's prior
written consent (which consent shall not be unreasonably withheld), except that
such rights and obligations may be assigned or transferred pursuant to a merger
or consolidation in which the Company is not the continuing entity, or a sale,
liquidation, or other disposition of all or substantially all of the Company's
assets, provided that the assignee or transferee is the successor to all or
substantially all of the Company's assets and assumes the liabilities,
obligations, and duties of the Company under this Agreement, either
contractually or as a matter of law.
15. Waiver, Modification, and Interpretation. No provisions of this
Agreement may be modified, waived, or discharged unless such waiver,
modification, or discharge is agreed to in a writing signed by Executive and an
appropriate officer of the Company empowered to sign the,
12
same by the Board. No waiver by either party at any time of any breach by the
party of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or at any prior to subsequent time.
The validity, interpretation, construction, and performance of this Agreement
shall be governed by the laws of the State of Kansas; provided, however, that
the corporate law of the state of incorporation of the Company shall govern
issues related to the issuance of shares of its Common Stock. Except as provided
in Section 12, any action brought to enforce or interpret this Agreement shall
be maintained exclusively in the state and federal courts located in Chicago,
Illinois. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
16. No Mitigation/No Offset; Indemnification.
(a) No Mitigation/No Offset. In the event of any termination of his
employment, Executive shall be under no obligation to seek other employment and,
except as otherwise expressly provided herein, there shall be no offset against
or reduction of amounts due to him on account of any remuneration or benefits
provided by any subsequent employment he may obtain. Except as expressly
provided herein, the Company's obligation to make any payment pursuant to, and
otherwise perform its obligations under, this Agreement shall not be affected by
any offset, counterclaim or other right that the Company may have against
Executive for any reason, except that the Company shall be entitled to offset
amounts payable hereunder against any and all amounts owed by Executive to the
Company or an Affiliated Company due to Executive's material breach of this
Agreement, fraudulent or dishonest conduct, or conviction of a felony with
respect to assets of the Company or an Affiliated Company.
(b) Indemnification. The Company will indemnify Executive to the same
extent the Company indemnifies its directors and will provide such indemnity on
a basis substantially similar, in both form and substance, to the indemnity
provided to the Company's directors.
17. Headings. The headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of any provision
of this Agreement.
18. Entire Agreement. This Agreement (together with the documents expressly
referenced herein) constitutes the entire agreement between the parties,
supersedes in all respects any prior agreement between the Company and Executive
and may not be changed except by a writing duly executed and delivered by the
Company and Executive in the same manner as this Agreement.
19. Survival. Anything to the contrary notwithstanding, the rights and
obligations under Sections 8, 9, 10, 12, 13, 14, 15, 16, 18, 21, and 22 shall
survive the termination of this Agreement.
20. Counterparts. Company and Executive may execute this Agreement in any
number of counterparts, each of which shall be deemed to be an original but all
of which shall
13
constitute but one instrument. In proving this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
21. Conflicting Terms. If the terms of this Agreement conflict with the
terms of any of the Benefit Plans or the Stockholders Agreement, the term that
provides the greatest benefit to Executive shall prevail.
22. Certain Additional Payments by the Company. In the event any amount
(whether paid or payable or distributed or distributable) by the Company or an
Affiliate Company to or for the benefit of Executive pursuant to this Agreement,
the STIP, the EIP or otherwise would be subject to the excise tax imposed
pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (or
any successor provision thereto), or any similar tax imposed by state or local
law or any interest or penalties with respect to such taxes (collectively
"Excise Taxes"), the Company shall make an additional payment or payments to
Executive (a "Gross-Up Payment"). The Gross-Up Payment shall be in an amount
such that, after payment by the Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including any Excise Tax
imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax. In addition to the foregoing, the
Company shall pay to Executive the reasonable fees and expenses incurred by
Executive in determining the amount of such Excise Taxes and any audit or
contest of such Excise Taxes. All amounts shall be paid by the Company within a
reasonable period of time after receipt of notice from Executive.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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23. Purchase of Shares and Matching Grant. On the Commencement Date,
Executive agrees to purchase from the Parent and the Parent agrees to sell to
Executive 100,000 shares of the parent's common stock at $10.00 per share, which
investment will be matched on a 4 to 1 basis by a grant of restricted shares in
Parent, subject to and in accordance with the terms and conditions of the EIP.
In connection with the foregoing and as a condition to the purchase and granting
of shares, Executive agrees to execute such documents and take such other action
as may reasonably be required by Company or the Parent, including, but not
limited to, executing a subscription agreement in a form satisfactory to the
Parent and executing a counterpart to this Stockholders Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
SPIRIT AEROSYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Director
"Company"
SPIRIT AEROSYSTEMS HOLDINGS, INC. (which
is a party to this Agreement solely
respect to its obligation to deliver
shares to Executive pursuant to Section
23 of the Agreement and not as a
guarantor or surety of any obligation of
the Company or any other person under
this Agreement)
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Director
"Parent"
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
"Executive"
15
SPIRIT AEROSYSTEMS, INC.
0000 XXXXX XXXXXX
XXXXXXX, XXXXXX 00000
August 3, 2005
Mr. Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
RE: Employment Agreement dated as of August 3, 2005, by and between Spirit
AeroSystems, Inc. and Xxxxxx Xxxxxxx (the "Employment Agreement")
Dear Xxxx:
Spirit AeroSystems, Inc. (the "Company") on the Commencement Date (as
defined in the Employment Agreement) will pay to you in immediately available
funds a portion of the amount set forth in Section 5(b) of the Employment
Agreement. Such portion will be an amount which, after deduction of all
withholding taxes on such amount, will equal S1,000,000, which Spirit
AeroSystems Holdings, Inc. will accept in purchase of 100,000 of its shares in
accordance with Section 23 of the Employment Agreement. The remainder of the
$4,100,000 will be paid on or before January 15, 2006.
On the Commencement Date you will become a full-time employee of the
Company entitled to all benefits under Section 3(b) of the Employment Agreement
calculated on your Base Salary of $432,500 per year; however, for the period
from the Commencement Date to September 12, 2005, the payment of your Base
Salary under Section 3(a)(i) shall be calculated on the following basis:
Number of Days in Wichita
$432,500 x -------------------------
260
The Company will offer you an Indemnification Agreement to be entered into
between the Company and you providing indemnity similar to that provided to the
Company's directors (similar to that in the draft Director Indemnification
Agreement form provided to you).
Very truly yours,
SPIRIT AEROSYSTEMS, INC.
/s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, Director
16
