EXHIBIT 10.13
================================================================================
SPIRIT
AEROSYSTEMS
HOLDINGS, INC.
DIRECTOR
STOCK PLAN
================================================================================
________ __, 2005
SPIRIT AEROSYSTEMS HOLDINGS, INC.
EXECUTIVE INCENTIVE PLAN
Table of Contents
ARTICLE I -- PURPOSE..................................................... 1
Section 1.01. Purpose................................................. 1
ARTICLE II -- DEFINITIONS................................................ 1
Section 2.01. Affiliate............................................... 1
Section 2.02. Applicable Percentage................................... 2
Section 2.03. Board of Directors...................................... 2
Section 2.04. Call Price.............................................. 2
Section 2.05. Closing Date............................................ 2
Section 2.06. Committee............................................... 2
Section 2.07. Company................................................. 2
Section 2.08. Companies............................................... 2
Section 2.09. Director................................................ 2
Section 2.10. Liquidity Event......................................... 2
Section 2.11. Market Value............................................ 3
Section 2.12. Measurement Date........................................ 3
Section 2.13. Onex.................................................... 3
Section 2.14. Participant............................................. 4
Section 2.15. Person.................................................. 4
Section 2.16. Plan.................................................... 4
Section 2.17. Positive Return Condition............................... 4
Section 2.18. Public Offering......................................... 4
Section 2.19. QPO Positive Return Condition........................... 4
Section 2.20. Qualified Public Offering............................... 4
Section 2.21. Spirit.................................................. 4
Section 2.22. Stockholders Agreement.................................. 4
Section 2.23. Sole Discretion......................................... 5
ARTICLE III -- ELIGIBILITY............................................... 5
Section 3.01. Eligibility............................................. 5
ARTICLE IV -- GRANTS OF SHARES........................................... 5
Section 4.01. Grants of Shares........................................ 5
Section 4.02. One Year Service Requirement............................ 5
Section 4.03. Interest in Restricted Shares........................... 5
-i-
Section 4.04. Dividends............................................... 6
Section 4.05. No Rights of Stockholder................................ 7
Section 4.06. Call Rights on Former Directors' Shares................. 7
ARTICLE V -- CONDITIONS AND RESTRICTIONS................................. 9
Section 5.01. General Conditions and Restrictions..................... 9
Section 5.02. Restriction on Transfer of Shares....................... 9
Section 5.03. Legends................................................. 9
ARTICLE VI -- ADMINISTRATION............................................. 10
Section 6.01. Committee............................................... 10
Section 6.02. Reliance on Certificates, etc........................... 10
ARTICLE VII -- AMENDMENT AND TERMINATION................................. 10
Section 7.01. Amendment and Termination............................... 10
ARTICLE VIII -- MISCELLANEOUS............................................ 11
Section 8.01. Effective Date.......................................... 11
Section 8.02. Payments Net of Withholding............................. 11
Section 8.03. Binding on Successors................................... 11
Section 8.04. State Law............................................... 11
Section 8.05. Headings................................................ 11
Section 8.06. Notices................................................. 11
Section 8.07 Severability............................................ 11
Section 8.08. No Right to Serve as a Director......................... 11
Section 8.09. Government and Other Regulations........................ 12
Section 8.10. Nonexclusivity of the Plan.............................. 12
-ii-
SPIRIT AEROSYSTEMS HOLDINGS, INC.
DIRECTOR STOCK PLAN
WITNESSETH: THAT;
WHEREAS, the Company desires to provide Participants with the opportunity
to acquire an equity interest in the Company through the granting of shares of
Class B Common Stock, par value $0.01 per share (the "Common Stock"), in the
Company on the terms and conditions set forth herein; and
WHEREAS, the Board of Directors of the Company has reviewed the terms and
provisions hereof and found them satisfactory.
NOW, THEREFORE, the Company hereby adopts the Plan on the terms and
conditions set forth herein, which Plan shall be known as the "Spirit
AeroSystems Holdings, Inc. Director Stock Plan."
ARTICLE I -- PURPOSE
Section 1.01. Purpose. The purpose of the Plan is to provide Participants
with the opportunity to acquire an equity interest in the Company through the
grant of shares of Common Stock ("Shares") by the Company to Participants,
subject to certain conditions and restrictions, as set forth in the Plan. The
maximum aggregate number of Shares that may be granted to Participants under the
Plan shall be 1,000,000 Shares.
ARTICLE II -- DEFINITIONS
For purposes of the Plan, the following terms shall have the following
meanings, unless the context clearly indicates otherwise.
Section 2.01. Affiliate means, with respect to any Person, (a) any director
or executive officer of such Person, (b) any spouse, parent, sibling, descendant
or trust for the exclusive benefit of such Person or his or her spouse, parent,
sibling or descendant (or the spouse, parent, sibling or descendant of any
director or executive officer of such Person), and (c) any other Person that,
directly or indirectly, controls or is controlled by or is under common control
with such Person. For the purpose of this definition, (i) "control" (including
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, status as a general partner, or by contract or otherwise and (ii)
Onex shall be deemed to control any Person controlled by Gerald W. Schwartz so
long as Mr. Schwartz controls Onex Corporation.
-1-
Section 2.02. Applicable Percentage means (i) in connection with any
Liquidity Event, the aggregate percentage of Onex's total equity investment in
the Company that has been liquidated, taking into account such Liquidity Event
and all prior Liquidity Events (if any); provided, however, that the Committee
may, in its Sole Discretion, increase such percentage with respect to a
Participant, if the Committee determines it is in the best interests of the
Company to do so, and (ii) in connection with a deemed Liquidity Event in
accordance with Section 4.03.B.3, 100%.
Section 2.03. Board of Directors means the board of directors of the
Company.
Section 2.04. Call Price means the most recent value per Share as
determined by the Board of Directors prior to the date of the applicable Call
Event for purposes of the Company's short-term incentive plan; provided that, if
the Company has not adopted a short-term incentive plan, the "Call Price" shall
be the fair market value per Share as determined by the Board of Directors in
good faith without regard to minority discounts.
Section 2.05. Closing Date means June 16, 2005, being the closing date of
the sale of assets from The Boeing Company to Spirit, pursuant to that certain
Asset Purchase Agreement by and between The Boeing Company and Spirit, dated as
of February 22, 2005 (the "Asset Purchase Agreement").
Section 2.06. Committee means the Board of Directors or a committee
appointed by, and serving at the pleasure of, the Board of Directors for
purposes of administering the Plan, which committee shall operate under rules
and procedures established by the Board of Directors from time to time for such
purpose.
Section 2.07. Company means Spirit AeroSystems Holdings, Inc., a Delaware
corporation, or its successor.
Section 2.08. Companies means the Company, Spirit (or its successor), and
any other entity that adopts the Plan with the consent and approval of the
Committee.
Section 2.09. Director means a member of the board of directors of any of
the Companies.
Section 2.10. Liquidity Event means any of the following events:
A. A sale of Shares or other equity securities of the Company by Onex
(whether by merger, consolidation, recapitalization, reorganization or sale or
transfer of the Company's equity interests) other than a sale of Shares (i) to a
Person included in the definition of "Onex" contained in the Plan, or (ii)
within 180 days following the Closing Date, to one or more of Onex's
institutional co-investors; or
B. A sale of all or substantially all of the assets of the Company or
Spirit, provided that all or substantially all of the proceeds from such
transaction are distributed to the stockholders of the Company.
-2-
Section 2.11. Market Value means, with respect to a Share as of a
Measurement Date, an amount equal to A divided by B where:
A. "A" equals (i) the unencumbered value of the Company, determined in
accordance with recommendations from management of the Company or
Spirit, which recommendations shall be based upon appropriate
valuation factors, including earnings and multiples of earnings of
comparable companies, less (ii) total outstanding debts, capitalized
leases, and other obligations of the Company, whether secured or
unsecured, and the preference amount of any outstanding preferred
stock; and
B. "B" equals the total number of outstanding shares of common stock of
the Company plus the total number of shares of common stock of the
Company issued or issuable upon exercise, exchange, or conversion of
any outstanding options, warrants, or other rights or convertible
securities exercisable or exchangeable for, or convertible into,
common stock of the Company, less any shares or other equity interests
in which the holder thereof has not acquired an unrestricted interest
on or before such Measurement Date, determined, if necessary, on an
iterated basis (e.g., in the case of Restricted Shares granted
hereunder or under the Company's Executive Incentive Plan, which, in
the case of Restricted Shares granted under the Company's Executive
Incentive Plan, shall be iterated to the nearest one-hundredth of a
percent of Return on Invested Capital, as defined in such plan).
The determination of Market Value shall be made by the Board of Directors,
in its Sole Discretion; provided, however, that (i) prior to an initial public
offering, if the Board of Directors has made a concurrent determination of
market or fair value for purposes of any other stock ownership or stock
incentive plan of the Company, then Market Value shall equal the market or fair
value as determined for purposes of such other stock plan, (ii) on the date of
an initial public offering, the Market Value shall equal the sale price in such
initial public offering, net of underwriting commissions and discounts and (iii)
following an initial public offering, if the stock of the Company becomes listed
or quoted on a nationally recognized market or exchange, from and after that
date, Market Value shall mean the closing price per share of common stock of the
Company.
Section 2.12. Measurement Date means (i) for purposes of determining
whether the Positive Return Condition is satisfied, the date of a Liquidity
Event (or deemed Liquidity Event, in accordance with Section 4.03.B.3) and (ii)
for purposes of determining whether the QPO Positive Return Condition is
satisfied, each business day from and after the date of consummation of a
Qualified Public Offering on which the Shares held by a Participant are not
subject to any restrictions on transfer pursuant to a written agreement with the
Company or the underwriter(s) of such a Public Offering.
Section 2.13. Onex means Onex Partners LP, Onex Corporation or any
Affiliate of Onex Partners or Onex Corporation, including, for purposes of the
Plan, (a) any Person which has granted to Onex Partners, Onex Corporation or any
of their respective Affiliates
-3-
the right to vote or dispose of such Person's Shares (other than pursuant to the
Stockholders Agreement) and (b) any employee, officer or director of Onex
Corporation.
Section 2.14. Participant means a Director who is not an employee of any of
the Companies and who has been designated by the Committee as eligible to
participate in the Plan pursuant to Section 3.01.
Section 2.15. Person means an individual, trust, estate, partnership,
limited liability company, association, corporation, or other entity.
Section 2.16. Plan means this Spirit AeroSystems Holdings, Inc. Director
Stock Plan, as amended.
Section 2.17. Positive Return Condition means that, and is satisified if,
as of a Measurement Date (a) the sum of (1) each amount actually received by
Onex in respect of Shares as a result of all Liquidity Events (or which
hypothetically would be received by Onex as a result of a deemed Liquidity Event
in accordance with Section 4.03.B.3) occurring on or prior to such Measurement
Date and (2) the Applicable Percentage of each dividend actually paid by the
Company to Onex on or prior to such Measurement Date exceeds (b) the Applicable
Percentage of the amount of each equity investment made by Onex in the Company.
The determination of whether the Positive Return Condition is
satisfied shall be made by the Committee, in its Sole Discretion.
Section 2.18. Public Offering shall have the meaning set forth in the
Stockholders Agreement.
Section 2.19. QPO Positive Return Condition means that, and is satisfied
if, as of any Measurement Date, (a) the sum of (1) all amounts actually received
by Onex in respect of Shares (including, without limitation, sale proceeds and
dividends) on or prior to such Measurement Date and (2) the Market Value of all
Shares then held by Onex exceeds (b) the total amount of all equity investments
made by Onex in the Company.
The determination of whether the QPO Positive Return Condition is satisfied
shall be made by the Committee, in its Sole Discretion.
Section 2.20. Qualified Public Offering shall have the meaning set forth in
the Stockholders Agreement.
Section 2.21. Spirit means Spirit AeroSystems, Inc., a Delaware
corporation, and a wholly-owned subsidiary of the Company.
Section 2.22. Stockholders Agreement means the Investor Stockholders
Agreement, dated as of June 16, 2005, between the Company and its stockholders.
-4-
Section 2.23. Sole Discretion means the right and power to decide a matter,
which right may be exercised arbitrarily at any time and from time to time.
ARTICLE III -- ELIGIBILITY
Section 3.01. Eligibility. The Committee shall have the unrestricted right
and power, which may be exercised in its Sole Discretion at any time and from
time to time, to designate non-employee Directors who are eligible to
participate in the Plan.
ARTICLE IV -- GRANTS OF SHARES
Section 4.01. Grants of Shares.The Committee shall have the right from time
to time to grant Shares to Participants (it being understood that neither the
Board of Directors nor the Committee shall be obligated to grant all of the
Shares allocated by the Company for issuance under the Plan). Each grant of
Shares shall be made pursuant to a Stock Grant Agreement. Unless provided
otherwise in the Stock Grant Agreement, the Shares granted thereunder will be
subject to the vesting requirements described in Section 4.02 and Section 4.03
(shares granted subject to vesting requirements are referred to herein as
"Restricted Shares"). Participation by a Participant in any grant of Shares
under the Plan shall neither limit nor require participation by the Participant
in any other grant of Shares under the Plan, it being within the Sole Discretion
of the Committee to determine the Participants eligible to participate in the
Plan and in a grant of Shares under the Plan. The Shares may be either
previously issued Shares that have been reacquired by the Company or authorized
but unissued Shares, as the Board of Directors shall from time to time
determine, in its Sole Discretion. If any Participant's interest in Shares
granted under the Plan terminates, any Shares in which the Participant has no
further interest shall again become available to be granted under the Plan.
Section 4.02. One Year Service Requirement. If a Participant ceases to
serve as a Director prior to the first anniversary of the date of grant of any
Restricted Shares, any such Restricted Shares in which such Participant has not
theretofore acquired an unrestricted interest pursuant to Section 4.03 shall, on
the date such Participant ceases to be a Director, be forfeited to the Company
without any payment therefor.
Section 4.03. Interest in Restricted Shares.
A. A Participant granted Restricted Shares by the Company shall acquire
an unrestricted interest in those Restricted Shares only as follows:
1. Upon a Liquidity Event (or deemed Liquidity Event, in accordance
with Section 4.03.B.3), if the Positive Return Condition is satisfied,
each Participant holding Restricted Shares shall acquire an
unrestricted interest in the number of Restricted Shares held by such
Participant, subject to Section 4.03.B., equal to (1) the Applicable
Percentage of the total number of Restricted Shares granted to such
Participant under the Plan, less (2) the total
-5-
number of Restricted Shares, if any, in which such Participant has
previously acquired an unrestricted interest under the Plan.
2. Following a Qualified Public Offering, if the QPO Positive Return
Condition is satisfied on any Measurement Date, each Participant
shall, subject to Section 4.03.B., acquire an unrestricted interest in
all Restricted Shares then held by such Participant.
B. Operating Rules. The following rules also shall apply.
1. Future Liquidity Events. Following the occurrence of a Liquidity
Event, the provisions of this Section 4.03 may again be applied
to such Participant upon a later Liquidity Event to determine
whether the Participant may acquire an interest in any remaining
Restricted Shares granted to the Participant under the Plan.
2. Forfeiture Following Termination. If, on the fifth anniversary of
the date on which a Participant ceases to serve as a Director,
such Participant continues to hold Restricted Shares in which he
or she has not acquired an unrestricted interest, any interest in
such Restricted Shares shall terminate and such Restricted Shares
shall be forfeited to the Company without any payment therefor.
3. Ten-Year Limit. On the 10th anniversary of the Closing Date, if
any Participant(s) continue to hold Restricted Shares in which
they have not acquired an unrestricted interest (i.e., such
Restricted Shares have not been forfeited to the Company), the
provisions of this Section 4.03 shall be applied as if Onex sold
the remainder of its equity investment in the Company on such
date for consideration equal to Market Value, and a final
determination shall be made at that time whether the
Participant(s) will acquire an interest in such Restricted
Shares.
4. Termination of Interest in Restricted Shares. Upon disposition by
Onex of all of its equity interest or remaining equity interest
in the Company or upon the occurrence of a deemed disposition in
accordance with Section 4.03.B.3 above, any Participant 's
interest in Restricted Shares in which he or she has not acquired
an unrestricted interest on or prior to the date of such
disposition or deemed disposition shall terminate and shall be
forfeited to the Company without any payment therefor.
Section 4.04. Dividends. Dividends declared by the Board of Directors with
respect to Shares shall, with respect to any Restricted Shares, be cumulated and
paid to the Participant only at the time, and to the extent that, the
Participant acquires an unrestricted interest in any such Restricted Shares in
accordance with this Article IV.
-6-
Section 4.05. No Rights of Stockholder. Restricted Shares shall not be
subject to transfer or assignment, and a Participant shall not have the rights
of a stockholder in the Company with respect to any Restricted Shares unless and
until the Participant acquires an interest in such Restricted Shares in
accordance with this Article IV, provided that Participants shall, subject to
the Stockholders Agreement, be entitled to voting rights of a holder of the
Shares granted hereunder unless and until such Shares are required to be
forfeited to the Company.
Section 4.06. Call Rights on Former Directors' Shares.
A. If a Participant ceases to serve as a Director (following such
cessation, a "Former Director") prior to a Qualified Public Offering,
(such cessation, the "Call Event"), then the Company shall have the
right to require such Former Director (or, in the case of death or
permanent disability, such Former Director's executor, personal
representative or legal representative) to sell, by delivery of a
written notice (the "Call Notice") to such Former Director (or, in the
case of death or permanent disability, such Former Director's
executor, personal representative or legal representative) within 180
days after the date of the Call Event (the "Initial Call Period"), and
such Former Director (or, in the case of death or permanent
disability, such Former Director's executor, personal representative
or legal representative) shall be required to sell, all of the Shares
then held by such Former Director in which such Former Director has
acquired an unrestricted interest (including any Shares then held by
an Affiliate of such Former Director pursuant to a Transfer under
Section 4.2(a)(i) of the Stockholders Agreement) at a price per Share
equal to the Call Price.
B. If at any time, a Former Director acquires an unrestricted interest in
additional Shares after the expiration of the Initial Call Period and
prior to a Qualified Public Offering, then the Company shall have the
right to require such Former Director (or, in the case of death or
permanent disability, such Former Director's executor, personal
representative or legal representative) to sell, by delivery of a Call
Notice to such Former Director (or, in the case of death or permanent
disability, such Former Director's executor, personal representative
or legal representative) within 90 days after the date of such
acquisition (a "Subsequent Call Period"), and such Former Director
(or, in the case of death or permanent disability, such Former
Director's executor, personal representative or legal representative)
shall be required to sell, all of the Shares then held by such Former
Director in which such Former Director has acquired an unrestricted
interest (including any Shares then held by an Affiliate of such
Former Director pursuant to a Transfer under Section 4.2(a)(i) of the
Stockholders Agreement) at a price per Share equal to the Call Price.
C. The closing of any purchase of Shares by the Company pursuant to this
Section 4.06 shall take place at the principal office of the Company
within 15
-7-
days after the expiration of the Call Period or Subsequent Call
Period, as applicable, as the Company shall specify to such Former
Director (or, in the case of death or permanent disability, such
Former Director's executor, personal representative or legal
representative) in writing. At such closing, such Former Director (or,
in the case of death or permanent disability, such Former Director's
executor, personal representative or legal representative) shall
deliver to the Company certificates and/or other instruments
representing, together with stock or other appropriate powers duly
endorsed with respect to, the Shares, free and clear of all liens,
encumbrances or other restrictions (other than pursuant to securities
laws or the Stockholders Agreement), against payment by the Company of
the purchase price for the Shares in cash by delivery of a certified
check payable to such Former Director (or, in the case of death, such
Former Director's estate). Notwithstanding the foregoing, if the
payment of all or any portion of the purchase price is not permitted
to be made at the closing by the terms any credit agreement(s)
relating to the Company's senior debt (collectively, the "Credit
Agreement"), or the payment would cause a Default or an Event of
Default (as such terms are defined in any Credit Agreement), then that
portion of the purchase price shall instead become a subordinated
obligation of the Company (a "Subordinate Obligation"); the
Subordinate Obligation shall not be payable during the continuance of
a Default or an Event of Default (as defined in any Credit Agreement)
or if such payment would not otherwise be permitted by any Credit
Agreement or would result in a Default or an Event of Default (as
defined under any Credit Agreement). The Subordinate Obligation shall
be payable on the earlier to occur of (i) one day after the closing
date of a complete refinancing of the Company's senior debt and (ii)
receipt by the Company of the written approval of its senior lenders
to pay the principal and interest on the obligation in full. The
Subordinate Obligation shall accrue interest at the weighted average
rate applicable from time to time on the Company's senior debt. The
Company shall pre-pay the amount of any Subordinate Obligation,
together with accrued and unpaid interest, as and when it is permitted
to do so without Default (as defined in any Credit Agreement) or
creating an Event of Default (as defined in any Credit Agreement)
under any Credit Agreement, provided, that if there is more than one
Subordinate Obligation outstanding, the Company shall make
pre-payments on each Subordinate Obligation in the proportion that the
outstanding amount thereof (including accrued and unpaid interest)
bears to the aggregate outstanding Subordinate Obligations (including
accrued and unpaid interest).
D. If and to the extent the Company does not deliver a Call Notice within
the Call Period or Subsequent Call Period, as applicable, or if the
purchase of all Shares subject to the Call Notice does not occur at
the scheduled closing date through the fault of the Company, then the
Company's right to purchase such Shares pursuant to this Section 4.06
shall terminate.
-8-
ARTICLE V -- CONDITIONS AND RESTRICTIONS
Section 5.01. General Conditions and Restrictions. The Committee shall have
the unrestricted right and power, in its Sole Discretion, to determine the
number of Shares to be granted to a Participant under the Plan and to establish
such other terms, conditions, restrictions, or procedures related to a grant of
Shares as the Committee deems necessary or appropriate, including, but not
limited to, requiring, as a condition precedent to the grant of Shares under the
Plan, that a Participant execute the Stockholders Agreement and such other
agreements with the Company and/or other stockholders in the Company as the
Committee deems necessary or appropriate, in such form and substance as may be
satisfactory to the Committee. Shares of stock in the Company acquired under the
Plan shall be subject to any and all terms, conditions, and restrictions set
forth in the Company's certificate of incorporation and bylaws, as well as the
Stockholders Agreement and any other agreement entered into with respect to such
Shares.
Section 5.02. Restriction on Transfer of Shares. Shares acquired under the
Plan shall be subject to such conditions and restrictions on transfer as are set
forth in the Company's certificate of incorporation and bylaws, as well as the
Stockholders Agreement and any other agreement entered into with respect to such
Shares.
Section 5.03. Legends. All certificates representing Shares (including
Restricted Shares) issued under the Plan shall bear (until, in the opinion of
counsel, which opinion must be reasonably satisfactory in form and substance to
counsel for the Company, it is no longer necessary or required) the following
legends:
The securities represented by this document have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not
be sold, transferred, offered for sale, pledged, or hypothecated in
the absence of an effective registration statement as to the
securities under the Act or an opinion of counsel satisfactory to
Spirit AeroSystems Holdings, Inc. and its counsel that such
registration is not required.
The securities represented by this document are subject to the terms
and conditions, including restrictions on transfer, of a Stockholders
Agreement among Spirit AeroSystems Holdings, Inc. and its
stockholders, as amended from time to time, a copy of which is on file
at the principal office of Spirit AeroSystems Holdings, Inc.
In addition, certificates representing Restricted Shares shall bear (until, in
the opinion of counsel, which opinion must be reasonably satisfactory in form
and substance to counsel for the Company, it is no longer necessary or required)
the following legend:
The securities represented by this document are subject to the terms,
conditions, restrictions, and contingencies, including restrictions on
transfer and risk of forfeiture, contained in the
-9-
Spirit AeroSystems Holdings, Inc. Director Stock Plan, as amended from
time to time, a copy of which is on file at the principal office of
Spirit AeroSystems Holdings, Inc.
ARTICLE VI -- ADMINISTRATION
Section 6.01. Committee. The Committee shall have full power to administer
the Plan in all of its details, which powers shall include, but are not limited
to, the authority, in addition to all other powers provided by the Plan, to:
A. Determine in its Sole Discretion the eligibility of any Director to
participate in the Plan;
B. Make discretionary interpretations regarding the terms of the Plan and
make factual findings with respect to any issue arising under the
Plan, including, but not limited to, the power to determine whether a
Director shall be eligible to participate in the Plan or receive
benefits under the Plan, with its interpretation to be final and
conclusive;
C. Make and enforce such rules and regulations as it deems necessary or
proper for the efficient administration of the Plan;
D. Appoint such agents, specialists, legal counsel, accountants,
consultants, or other persons as the Committee deems advisable to
assist in administering the Plan; and
E. Maintain all records of the Plan.
Section 6.02. Reliance on Certificates, etc. The members of the Committee,
the Board of Directors, and the Directors, officers and employees of the
Companies shall be entitled to rely on all certificates and reports made by any
duly appointed accountants and on all opinions given by any duly appointed legal
counsel. Such legal counsel may be counsel for any of the Companies.
ARTICLE VII -- AMENDMENT AND TERMINATION
Section 7.01. Amendment and Termination. The Board of Directors may, at any
time, suspend or terminate the Plan and shall have the right to alter or amend
the Plan or any part thereof at any time and from time to time as it may, in its
Sole Discretion, deem proper and in the best interests of the Company; provided,
however, that no such termination, suspension, alteration, or amendment shall,
without the consent of the Participant, deprive a Participant of any interest in
Shares previously acquired by the Participant under the Plan, subject to the
terms and conditions of the Company's certificate of incorporation and bylaws,
the Stockholders Agreement, and any other agreement entered into with respect to
such Shares. Any termination, suspension, alteration, or amendment of the Plan
may be made by
-10-
the Board of Directors without action on the part of the stockholders of the
Company. Upon termination of the Plan, the rights of each Participant in any
Shares the Participant is not entitled to receive shall terminate.
ARTICLE VIII -- MISCELLANEOUS
Section 8.01. Effective Date. The Plan shall be effective from and after
the date of its adoption and approval by the Board of Directors and the
stockholders of the Company, and Shares may be granted immediately after such
adoption.
Section 8.02. Payments Net of Withholding. Notwithstanding any other
provision of the Plan, all transfers or payments shall be net of any amount
sufficient to satisfy all federal, state, and local withholding tax
requirements, and shall also be net of all amounts owed by Participant to the
Companies.
Section 8.03. Binding on Successors. The Plan shall be binding upon all
Participants, their respective heirs, and personal representatives, and upon the
Companies, their successors and assigns.
Section 8.04. Governing Law. The Plan and all agreements entered into under
the Plan shall be governed, construed, administered, and regulated in all
respects under the laws of the State of Delaware, without regard to the
principles of conflicts of law, to the extent such laws are not preempted by the
laws of the United States of America. Any action concerning the Plan or any
agreement entered into under the Plan shall be maintained exclusively in the
state or federal courts in Delaware.
Section 8.05. Headings. The headings used in the Plan are inserted for
reference purposes only and shall not be deemed to limit or affect in any way
the meaning or interpretation of any of the terms or provisions herein.
Section 8.06. Notices. Any notices or communications permitted or required
to be given herein by any Participant, the Company, the Committee, the
Companies, or any other person shall be deemed given either (i) when delivered,
or (ii) three days after being placed in the United States mail in an envelope
addressed to the last communicated address of the person to whom the notice is
being given, with adequate postage thereon prepaid.
Section 8.07 Severability. If any provision of the Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions thereof, and the Plan shall be construed and enforced as if
such provisions had not been included.
Section 8.08. No Right to Serve as a Director. Nothing herein contained
shall be deemed to give any Participant the right to continue to serve as a
Director or to be nominated by any of the Companies to serve as a Director.
-11-
Section 8.09. Government and Other Regulations. The obligation of the
Company to sell and deliver Shares under the Plan shall be subject to all
applicable laws, rules, and regulations and such approvals by any governmental
agencies as may be required, including, but not limited to, the effectiveness of
a registration statement under the Securities Act of 1933, as amended, as deemed
necessary or appropriate by legal counsel for the Company.
Section 8.10. Nonexclusivity of the Plan. The adoption of the Plan by the
Board of Directors shall not be construed as creating any limitations on the
power of the Board of Directors to adopt such other incentive arrangements as it
may deem desirable.
-12-
IN WITNESS WHEREOF, the Company has caused the Plan to be executed by a
duly authorized officer as of the date first set forth above.
SPIRIT AEROSYSTEMS HOLDINGS, INC.
By: /s/ Nigel Wright
--------------------------------------
Its: Vice President, Secretary & Treasurer
-13-