EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into on this 12th day of
February, 2010, by and between SPIRIT AEROSYSTEMS, INC., a Delaware corporation (the “Company”),
and XXXXXX X. XXXXXXXX (“Employee”). The effective date of this Agreement (the “Effective Date”)
will be the later of (i) the date this Agreement is signed, or (ii) the date this Agreement is
approved by the board of directors.
Recitals
WHEREAS, the Company is engaged in the manufacture, fabrication, maintenance, repair,
overhaul, and modification of aircraft and aircraft components and markets and sells its services
and products to its customers throughout the world (the “Business”); and
WHEREAS, the Company desires to hire Employee as its Senior Vice President, Chief Financial
Officer and to perform such other services as the Company may direct; and
WHEREAS, in the course of performing Employee’s duties for the Company, Employee is likely to
gain certain confidential and proprietary information belonging to the Company, develop
relationships that are vital to the Company’s goodwill, and acquire other important benefits to
which the Company has a protectable interest; and
WHEREAS, the Company has agreed to hire Employee and Employee has agreed to accept such
employment by the Company upon the terms, conditions, and restrictions contained in this Agreement.
Agreement
NOW THEREFORE, in consideration of the foregoing, and the representations, warranties, and
covenants hereinafter, the parties hereto agree as follows:
Section 1. Employment. In reliance on the representations and warranties made herein, the
Company hereby hires Employee to be its Senior Vice President, Chief Financial Officer and to
perform such duties and services in and about the business of the Company as may from time to time
be assigned to Employee. The job title and duties referred to in the preceding sentence may be
changed by the Company in the Company’s sole discretion at any time. Employee will devote
Employee’s full time to this employment. Employee’s employment on the terms set forth in this
Agreement will commence on the Effective Date and will continue until termination of the Agreement
in accordance with its terms (the “Employment Period”).
Section 2. Performance. Employee will use Employee’s best efforts and skill to faithfully
enhance and promote the welfare and best interests of the Company. Employee will strictly obey all
rules and regulations of the Company, follow all laws and regulations of appropriate government
authorities, and be governed by reasonable decisions and instructions of the Company as are
consistent with the job duties as described above.
Section 3. Compensation. Except as otherwise provided for herein, for all services to be
performed by Employee in any capacity hereunder, including without limitation any services as an
officer, director, member of any committee, or any other duties assigned Employee, throughout the
Employment Period the Company will pay or provide Employee with the following, and Employee will
accept the same, as compensation for the performance of Employee’s undertakings and the services to
be rendered by Employee:
(a) Base Salary. Initially, Employee will be entitled to an annual salary of $215,000
(the “Base Salary”), which will be paid in accordance with the Company’s policies and procedures.
The Base Salary may be changed from time to time based on Employee’s and the Company’s performance,
which may include, without limitation, participation in a periodic salary evaluation program on the
same basis as other employees of the Company of similar position.
(b) Signing Bonus. As soon as administratively practicable after the Effective Date,
the Company will pay Employee a signing bonus of $35,000, less taxes and other lawful withholdings.
(c) Annual Incentive Compensation. Employee will be provided incentive compensation
(either in cash or common stock of the Company’s parent), as specified by the administrative
committee of the Spirit AeroSystems Holdings, Inc. Short-Term Incentive Plan (the “STIP”), pursuant
to and in accordance with the terms and conditions of the STIP. The STIP incentives for the 2010
plan year will be 120% of Base Salary, if target performance goals are reached, and up to 240% of
Base Salary, if outstanding performance goals are reached. If target performance goals are not
reached, Employee will only be entitled to incentive compensation (if any) otherwise provided by
the STIP and Company policy.
(d) Long-Term Incentive Plan. During 2010, Employee will receive an award of shares
of common stock of Spirit AeroSystems Holdings, Inc. (“Holdings”) under the Spirit AeroSystems
Holdings, Inc. Long-Term Incentive Plan (the “LTIP”), the value of which equals (as determined
under such conventions and rules as Holdings board of directors or the LTIP administrative
committee may adopt) 170% of Employee’s Base Salary, subject to and in accordance with the terms
and provisions of the LTIP and the terms and conditions established with respect to such award by
the Holdings board of directors and the LTIP administrative committee (including, but not limited
to, a vesting schedule). This award will be further subject to, and conditioned upon, approval of
the award by the Holdings board of directors.
(e) Other Benefit Plans. Employee will also be eligible to participate in the
Company’s other employee benefit plans, policies, practices, and arrangements as the same may be
offered to Employee from time to time, including, without limitation, (i) 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, or other arrangement, or any successors thereto; (ii) the STIP, the LTIP, and the Spirit
AeroSystems Holdings, Inc. Deferred Compensation Plan; and (iii) such other benefit plans as the
Company may establish or maintain from time to time (collectively the “Benefit Plans”). Employee’s
entitlement to any other compensation or benefits will be determined in
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accordance with the terms and conditions of the Benefit Plans and other applicable programs,
practices, and arrangements then in effect.
(f) Earned Time Off. Employee will be provided with earned time off as determined in
accordance with the Company’s policies and practices in effect from time to time. Notwithstanding
any contrary policy or practice, however, Employee will be credited with no fewer than 10 days of
earned time off per year.
(g) Fringe Benefits. Employee will be provided with all other fringe benefits and
perquisites in accordance with the Company’s policies, as the same may be amended from time to
time.
(h) Withholding Taxes. The Company will have the right to deduct from all payments
made to Employee hereunder any federal, state, or local taxes required by law to be withheld.
(i) Expenses. During Employee’s employment, the Company will promptly pay or
reimburse Employee for all reasonable out-of-pocket expenses incurred by Employee in the
performance of duties hereunder in accordance with the Company’s policies and procedures then in
effect.
Section 4. Restrictions.
(a) Acknowledgements. Employee acknowledges and agrees that: (1) during the term of
Employee’s employment, because of the nature of Employee’s responsibilities and the resources
provided by the Company, Employee will acquire valuable and confidential skills, information, trade
secrets, and relationships with respect to the Company’s business practices and operations; (2)
Employee may develop on behalf of the Company a personal acquaintance and/or relationship with
various persons, including, but not limited to, customers and suppliers, which acquaintances may
constitute the Company’s only contact with such persons, and, as a consequence of the foregoing,
Employee will occupy a position of trust and confidence with respect to the Company’s affairs; (3)
the Business involves the marketing and sale of the Company’s products and services to customers
throughout the entire world, the Company’s competitors, both in the United States and
internationally, consist of both domestic and international businesses, and the services to be
performed by Employee for the Company involve aspects of both the Company’s domestic and
international business; and (4) it would be impossible or impractical for Employee to perform
Employee’s duties for the Company without access to the Company’s confidential and proprietary
information and contact with persons that are valuable to the goodwill of the Company. Employee
acknowledges that if Employee went to work for, or otherwise performed services for, a third party
engaged in a business substantially similar to the Business, the disclosure by Employee to a third
party of such confidential and proprietary information and/or the exploitation of such
relationships would be inevitable.
(b) Reasonableness. In view of the foregoing and in consideration of the remuneration
to be paid to Employee, Employee agrees that it is reasonable and necessary for the protection of
the goodwill and business of the Company that Employee make the covenants
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contained in this Agreement regarding the conduct of Employee during and subsequent to
Employee’s employment by the Company, and that the Company will suffer irreparable injury if
Employee engages in conduct prohibited by this Agreement.
(c) Non-Compete. During the term of Employee’s employment by the Company and for a
period of two (2) years after termination of such employment, neither Employee nor any other person
or entity with Employee’s assistance nor any entity in which Employee directly or indirectly has
any interest of any kind (without limitation) will anywhere in the world, directly or indirectly
own, manage, operate, control, be employed by, solicit sales for, invest in, participate in,
advise, consult with, or be connected with the ownership, management, operation, or control of any
business which is engaged, in whole or in part, in the Business, or any business that is
competitive therewith or any portion thereof, except for the exclusive benefit of the Company.
Employee will not be deemed to have breached this provision, however, if Employee’s sole relation
with any such entity consists of Employee’s holding, directly or indirectly, not greater than two
percent (2%) of the outstanding securities of a company listed on or through a national securities
exchange.
(d) Non-Solicitation. In addition, during the term of Employee’s employment by the
Company and for a period of two (2) years after termination of such employment, neither Employee
nor any person or entity with Employee’s assistance nor any entity that Employee or any person with
Employee’s assistance or any person who Employee directly or indirectly controls will, directly or
indirectly, (1) solicit or take any action to induce any employee to quit or terminate their
employment with the Company or the Company’s affiliates, or (2) employ as an employee, independent
contractor, consultant, or in any other position, any person who was an employee of the Company or
the Company’s affiliates during the aforementioned period.
(e) Confidentiality. Without the express written consent of the Company, Employee
will not at any time (either during or after the termination of the term of Employee’s employment)
use (other than for the benefit of the Company) or disclose to any other person or 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’s, or any of their affiliates’ trade
secrets or inventions of which Employee has gained knowledge during Employee’s employment with the
Company. This paragraph will not apply to any such information that: (1) Employee is required to
disclose by law; (2) has been otherwise disseminated, disclosed, or made available to the public;
or (3) was obtained after Employee’s employment with the Company ended and from some source other
than the Company, which source was under no obligation of confidentiality.
(f) Effect of Breach. Employee agrees that a breach of this Section 4 cannot
adequately be compensated by money damages and, therefore, the Company will 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 such provisions, and Employee hereby consents to the issuance of such injunction and
to the ordering of specific performance, without the requirement of the Company to post a bond or
other security.
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(g) Other Rights Preserved. Nothing in this Section eliminates or diminishes rights
which the Company may have with respect to the subject matter hereof under other agreements, the
governing statutes, or under provisions of law, equity, or otherwise. Without limiting the
foregoing, this Section does not limit any rights the Company may have under any agreement with
Employee regarding trade secrets and confidential information.
Section 5. Termination. This Agreement will terminate upon the following circumstances:
(a) Without Cause. At any time at the election of either Employee or the Company for
any reason or no reason, without cause, but subject to the provisions of this Agreement. It is
expressly understood that Employee’s employment is strictly “at will.”
(b) Cause. At any time at the election of the Company for Cause. “Cause” for this
purpose means (i) Employee committing a material breach of this Agreement or acts involving moral
turpitude, including fraud, dishonesty, disclosure of confidential information, or the commission
of a felony, or direct and deliberate acts constituting a material breach of Employee’s duty of
loyalty to the Company; (ii) Employee willfully or continuously refusing to perform the material
duties reasonably assigned to Employee by the Company that are consistent with the provisions of
this Agreement and not resulting from a Disability; or (iii) the inability of Employee to obtain
and maintain appropriate United States security clearances.
(c) Disability. Employee’s death or Employee’s being unable to render the services
required to be rendered by Employee for a period of one hundred eighty (180) days during any
twelve-month period (“Disability”).
Section 6. Effect of Termination.
(a) If Employee’s employment is terminated (i) by Employee, or (ii) by the Company for Cause,
the Company will pay Employee’s compensation only through the last day of employment, and, except
as may otherwise be expressly provided in this Agreement or in any Benefit Plan, the Company will
have no further obligation to Employee.
(b) If Employee’s employment is terminated by the Company before the expiration of two (2)
years after the Effective Date for any reason other than Cause and for so long as Employee is not
in breach of Employee’s continuing obligations under Section 4, the Company will (i) continue to
pay Employee an amount equal to Employee’s Base Salary in effect immediately before termination of
Employee’s employment for a period of 12 months, and (ii) pay the costs of COBRA medical and dental
benefits coverage which are offered to Employee after termination for a period of 12 months.
Except as may otherwise be expressly provided in this Agreement or in any Benefit Plan, the Company
will have no further obligation to Employee.
(c) On termination of employment, Employee will deliver all trade secret, confidential
information, records, notes, data, memoranda, and equipment of any nature that are in Employee’s
possession or under Employee’s control and that are the property of the Company
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or relate to the
business of the Company, and Employee will pay to the Company any amounts due and owing from the
Employee to the Company as specified in this Agreement.
(d) Employee’s obligations under Section 4 through Section 9 of this Agreement will survive
the expiration or termination of this Agreement.
Section 7. Representations and Warranties.
(a) No Conflicts. Employee represents and warrants to the Company that Employee is
under no duty (whether contractual, fiduciary, or otherwise) that would prevent, restrict, or limit
Employee from fully performing all duties and services for the Company, and the performance of such
duties and services will not conflict with any other agreement or obligation to which Employee is
bound.
(b) No Hardship. Employee represents and acknowledges that Employee’s experience
and/or abilities are such that observance of the covenants contained in this Agreement will not
cause Employee any undue hardship and will not unreasonably interfere with Employee’s ability to
earn a livelihood.
Section 8. Alternative Dispute Resolution.
(a) Mediation. Employee 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 dealings or
relationship between Employee and the Company (“Disputes”) to mediation in Wichita, Kansas, and in
accordance with the Commercial Mediation Rules of the American Arbitration Association currently in
effect. The mediation will 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 will be neutral and impartial. The mediator will 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 Employee will pay their respective
attorneys’ fee and other costs associated with the mediation, and the Company and Employee will
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 8(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 Wichita, Kansas, 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. §§ 1 et seq.) and not by any state arbitration
law. The arbitrator will have the right to award or include in the arbitrator’s award any relief
which the arbitrator deems proper under the circumstances, including, without limitation, money
damages (with interest on unpaid amounts from the date due), specific
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performance, injunctive
relief, and 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 Employee will
pay their respective attorneys’ fees and other costs associated with the arbitration, and the
Company and Employee will equally bear the costs and fees of the arbitrator.
(c) Confidentiality. Employee and the Company agree that they will not disclose, or
permit those acting on their behalf to disclose, any aspect of the proceedings under Section 8(a)
and Section 8(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 Employee, 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 Employee’s or the Company’s disclosures
of the terms of any settlement or arbitration award to their attorney(s), accountant(s), financial
advisor(s), or Employee’s disclosure to family members, provided that they first agree to comply
with the provisions of this paragraph.
(d) Injunctions. Notwithstanding anything to the contrary contained in this Section 8,
the Company and Employee will have the right in a proper case to obtain temporary restraining
orders and temporary or preliminary injunctive relief from a court of competent jurisdiction. But
the Company and Employee must contemporaneously submit the Disputes for non-binding mediation under
Section 8(a) and then for arbitration under Section 8(b) on the merits as provided herein if such
Disputes cannot be resolved through mediation.
Section 9. General.
(a) Notices. All notices required or permitted under this Agreement must be in
writing and 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: Xxxxxxxx Xxxxxxxxx, Senior Vice President, General Counsel
3801 X. Xxxxxx
P.O. Box 780008, Mail Code K11-60
Xxxxxxx, XX 00000-0000
Facsimile Number: 000-000-0000
Attention: Xxxxxxxx Xxxxxxxxx, Senior Vice President, General Counsel
3801 X. Xxxxxx
P.O. Box 780008, Mail Code K11-60
Xxxxxxx, XX 00000-0000
Facsimile Number: 000-000-0000
or such other person or address as designated in writing to Employee.
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To Employee:
Xxxxxx X. Xxxxxxxx
at Employee’s last known residence address or to such other address as designated by
Employee in writing to the Company.
(b) Successors. Neither this Agreement nor any right or interest therein will be
assignable or transferable (whether by pledge, grant of a security interest, or otherwise) by
Employee or Employee’s beneficiaries or legal representatives, except by will, by the laws of
descent and distribution, or inter vivos revocable living grantor trust as Employee’s
beneficiaries. This Agreement will be binding upon and will inure to the benefit of the Company,
its successors and assigns, and Employee and will be enforceable by them and Employee’s heirs,
legatees, and legal personal representatives. If Employee dies during the term of this Agreement,
the obligation to pay salary and provide benefits will immediately cease; and, absent actual notice
of any probate proceeding, the Company will pay any compensation due for the period preceding
Employee’s death to the following person(s) in order of preference: (i) spouse of Employee; (ii)
children of Employee eighteen years of age and over, in equal shares; (iii) father, mother,
sisters, and brothers, in equal shares; or (d) the person to whom funeral expenses are due. Upon
payment of such sum, the Company will be relieved of all further obligations hereunder.
(c) 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 Employee and an appropriate officer of the Company empowered to sign the same by
the Board of Directors of the Company. 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 will be deemed a waiver of similar or dissimilar provisions or conditions at the same
time or at any prior or subsequent time. The validity, interpretation, construction, and
performance of this Agreement will be governed by the laws of the State of Kansas, except that the
corporate law of the state of incorporation of the Company’s parent will govern issues related to
the issuance of shares of its common stock. Except as provided in Section 8, any action brought to
enforce or interpret this Agreement will be maintained exclusively in the state and federal courts
located in Wichita, Kansas.
(d) Interpretation. The headings contained herein are for reference purposes only and
will not in any way affect the meaning or interpretation of any provision of this Agreement. No
provision of this Agreement will be interpreted for or against any party hereto on the basis that
such party was the draftsman of such provision; and no presumption or burden of proof will arise
disfavoring or favoring any party by virtue of the authorship of any of the provisions of this
Agreement.
(e) Counterparts. The Company and Employee may execute this Agreement in any number
of counterparts, each of which will be deemed to be an original but all of which will constitute
but one instrument. In proving this Agreement, it will not be necessary to produce or account for
more than one such counterpart.
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(f) Invalidity of Provisions. If a court of competent jurisdiction declares that any
provision of this Agreement is invalid, illegal, or unenforceable in any respect, and if the rights
and obligations of the parties to this Agreement will not be materially and adversely affected
thereby, in lieu of such illegal, invalid, or unenforceable provision the court may add as a part
of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as is possible. If such court cannot so substitute or declines
to so substitute for such invalid, illegal, or unenforceable provision, (i) such provision will be
fully severable; (ii) this Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof; and (iii) the remaining provisions of
this Agreement will remain in full force and effect and not be affected by the illegal, invalid, or
unenforceable provision or by its severance herefrom. The covenants contained in this Agreement
will each be construed to be a separate agreement independent of any other provision of this
Agreement, and the existence of any claim or cause of action of Employee against the Company,
predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by the
Company of any of said covenants.
(g) 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 Employee and may not be changed except by a writing duly executed and delivered by
the Company and Employee in the same manner as this Agreement.
(h) No Deferral of Compensation. The salary continuation amounts payable to the
Employee after separation from service under Section 6(b) (if any) are intended to be exempt from
the definition of “deferred compensation” for purposes of Internal Revenue Code (“Code”) Section
409A as amounts payable only in the event of involuntary termination without Cause. In the event
the total of the salary continuation amounts payable to Employee after termination of employment
under Section 6(b) (if any) will exceed two times the lesser of (i) Employee’s annualized base
salary for the calendar year immediately preceding the calendar year in which Employee’s employment
terminates, or (ii) the dollar amount in effect under Code Section 401(a)(17) for the year in which
Employee terminates employment, then all such amounts will be paid to Employee in equal
semi-monthly installments on the first and fifteenth days of each month (or the first business day
following any such day, if such day is not a business day) for a period of 12 months, commencing
with the first day of the month after termination of Employee’s employment, and payment of such
amounts may not be accelerated. This subsection and the terms of this Agreement are intended to
comply with, and will be interpreted and construed in accordance with and in a manner that complies
with, the requirements of Code section 409A.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date
and year first written above.
SPIRIT AEROSYSTEMS, INC.
| By: | /s/ Xxxxxx Xxxxx Xxxxxxx
|
/s/ Xxxxxx X. Xxxxxxxx | |
Name: Xxxxxx Xxxxx Xxxxxxx
|
Xxxxxx X. Xxxxxxxx | ||
Title: Senior Vice President, Administration and
& Human Resources |
|||
“Company”
|
“Employee” |
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