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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of
earliest event reported): November 27, 2023
Spirit
AeroSystems Holdings, Inc.
(Exact name of registrant as specified in
its charter)
Delaware |
|
001-33160 |
|
20-2436320 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
3801
South Oliver, Wichita, Kansas 67210
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including
area code: (316) 526-9000
|
Not Applicable |
|
|
(Former name or former address if changed since last
report.) |
|
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of
the Act:
Title of each
class |
|
Trading
Symbol(s) |
|
Name of each
exchange on which registered |
Class A Common Stock, par value $0.01 per share |
|
SPR |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.02 | Termination of a Material Definitive Agreement. |
Information set forth in Item 8.01 below is incorporated
by reference into this Item 1.02.
Item 5.02. |
Departures of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Effective as of November 27, 2023 (the “Separation Date”),
Samantha J. Marnick ceased to serve as the Executive Vice President and Chief Operating Officer and President of Commercial of Spirit
AeroSystems Holdings, Inc. (the “Company”).
In connection with the separation, Spirit AeroSystems, Inc. (“Spirit”)
and Ms. Marnick entered into a Separation Agreement and General Release (the “Separation Agreement”), dated as of November
30, 2023, and effective as of the Effective Date. Under the terms of the Separation Agreement and in consideration of Ms.
Marnick’s release of claims, future cooperation and compliance with certain obligations, including confidentiality, non-competition,
non-solicitation and mutual non-disparagement covenants, Ms. Marnick will receive separation payments comprised of the following: (i)
a sum of $720,000, which is equal to one year of Ms. Marnick’s annual base salary that was in place on the Separation Date and $20,000
to assist with the costs associated with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or COBRA; and (ii) a
payment of $556,850 with respect to certain awards granted to Ms. Marnick pursuant to the Company’s Long-Term Incentive Plan under
the Company’s Omnibus Incentive Plan that were forfeited upon the Separation Date. The Separation Agreement also provides for the payment of $75,000 to Ms. Marnick for her
to obtain transition services and reimbursement of up to $15,000 in attorney’s fees incurred by Ms. Marnick in connection with
the negotiation of the Separation Agreement.
The foregoing description of the Separation Agreement is not complete
and is qualified in its entirety by reference to the full text of the Separation Agreement, which is filed as Exhibit 10.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Redemption of 2025 Second Lien Notes
On December 1, 2023 (the “Redemption Date”), Spirit redeemed
all of the outstanding $91,806,000 principal amount of its 7.500% Senior Secured Second Lien Notes due 2025 (the “2025 Second Lien
Notes”) at a redemption price equal to 100.780% of the principal amount thereof plus accrued and unpaid interest thereon to the
Redemption Date, in accordance with the terms of the Indenture, dated as of April 17, 2020, among Spirit, the Company and Spirit AeroSystems
North Carolina, Inc., as guarantors, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Collateral Agent.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
SPIRIT AEROSYSTEMS HOLDINGS, INC. |
|
|
Date: December 1, 2023 |
/s/ Mindy McPheeters |
|
Mindy McPheeters |
|
Senior Vice President, General Counsel and Corporate Secretary |
Exhibit 10.1
SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS SEPARATION AGREEMENT
AND GENERAL RELEASE (the “Agreement”) is made and entered into as of this 30th day of November, 2023, by and among
Spirit AeroSystems, Inc. (the “Company”), Spirit AeroSystems Holdings, Inc., the parent of the Company (the
“Parent”), and Samantha Marnick (the “Executive”).
FOR VALUABLE CONSIDERATION,
the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Separation.
Effective as of November 27, 2023 (the “Separation Date”), the Executive is no longer employed by the Company
as its Executive Vice President, Chief Operating Officer, and President of Commercial, and no longer holds any and all other positions
she held as an officer or director of the Company or any of its subsidiaries or as an officer of the Parent.
2. Consideration
in Settlement. In consideration of both (i) the release of all claims described below in Paragraph 4, (ii) the Covenant
Not to Sue in Paragraph 5, (iii) non-disparagement provision in Paragraph 6, (iii) the protective agreement described in Paragraph
7, (iv) the agreement of future cooperation in Paragraph 16 and (v) the other terms of this Agreement, the Company agrees to
compensate the Executive as follows (subject in all cases to Paragraph 2(g) of this Agreement):
(a) Separation
Payments. The Company shall pay the Executive the sum of seven hundred twenty thousand dollars ($720,000) (the “Separation
Payment”), which comprises an amount equivalent to one year of the Executive’s current annual base salary of seven hundred
thousand dollars ($700,000) and an additional sum of twenty thousand ($20,000) to assist with the costs associated with continuation of
coverage pursuant to Part 6 of Title I of ERISA and Section 4980B of the Internal Revenue Code of 1986, as amended (“COBRA”),
consistent with Company policy and federal law, or to use as Executive otherwise sees fit. The Separation Payment shall be payable in
a lump sum amount to be paid to the Executive on the Company’s first payroll date after the Effective Date.
(b) Award
Equivalent. The Company shall pay the Executive a lump sum amount of five hundred fifty-six thousand eight hundred fifty dollars ($556,850)
in recognition of various long-term incentive awards that will be forfeited in accordance with their terms, to be paid on the Company’s
first payroll date after the Effective Date.
(c) Transition
Services. The Company shall pay the Executive a lump sum amount of seventy-five thousand dollars ($75,000) for Executive to obtain
transition services, to be paid on the Company’s first payroll date after the Effective Date.
(d) Attorney’s
Fees. The Company shall reimburse the Executive up to fifteen thousand dollars ($15,000) for the legal fees incurred by the Executive
in connection with the negotiation and documentation of this Agreement; provided that, upon request by the Company, Executive provides
the Company with reasonable documentation of such fees (it being understood that no such documentation shall be required that is subject
to attorney-client privilege).
(e) Benefit
Plans. Following the Separation Date, the Executive shall be entitled to receive (i) her account balance and accrued benefit,
as applicable, under the Parent’s Retirement and Savings Plan; (ii) her matching contribution and account balance, as applicable,
under the Parent’s Deferred Compensation Plan; and (iii) any amount remaining in the perquisite plan, each in accordance with
the terms of such plans.
(f) Taxes.
The Company and the Executive acknowledge and agree that all payments made hereunder constitute
“wages” for purposes of FICA, FUTA and income tax withholding and such taxes shall be withheld, as well as any other withholdings
that are typically deducted from wages, as to any payments made under this Agreement.
(g) Other
Continuing Rights. The Executive agrees that, except for her accrued base salary earned through the Separation Date and the payments
outlined within this Agreement, she has been paid all other compensation due to her, including but not limited to all salary, bonuses,
deferred compensation, incentives and all other compensation of any nature whatsoever. Except as set forth above, no other sums (contingent
or otherwise) shall be paid to the Executive in respect of her employment by the Company or the Parent, and any such sums (whether or
not owed) are hereby expressly waived by the Executive.
(h) Contingent
Entitlement. The Executive acknowledges and agrees that her entitlement to payments under Paragraph (2)(a) through (d) shall
be conditioned on her continuing compliance with Paragraphs 4, 5, 6, 7, 11(c) and 16 of the Agreement. The Executive’s violation
of any obligation within Paragraphs 4, 5, 6, 7, 11(c) or 16 shall terminate the Company’s obligation to continue to make payments
in accordance with Paragraph 2(a) through (d).
3. Reimbursement
of Expenses. The Company shall reimburse the Executive for any and all business expenses to which she is entitled to reimbursement
under the Company’s expense reimbursement policies and procedures in effect on the date hereof. All expenses for reimbursement shall
be submitted within thirty (30) days from the date of this Agreement, and the Company shall process such expenses promptly. Any expenses
submitted after this thirty (30) day period will not be paid.
Executive shall remain and
be held personally responsible to pay the balance of any personal expenses charged to a Company credit card.
4. General
Release. As a material inducement to the Company and the Parent to enter into this Agreement and in consideration of the payments
to be made by the Company and the Parent to the Executive in accordance with Paragraph 2 above, the Executive, on behalf of herself, her
representatives, agents, estate, heirs, successors and assigns, and with full understanding of the contents and legal effect of this Agreement
and having the right and opportunity to consult with her counsel, releases and discharges the Company, the Parent, and their respective
shareholders, officers, directors, supervisors, members, managers, employees, agents, representatives, attorneys, insurers, parent companies,
divisions, subsidiaries, affiliates and all employee benefit plans sponsored or contributed to by the Company or the Parent (including
any fiduciaries thereof), and all related entities of any kind or nature, and its and their predecessors, successors, heirs, executors,
administrators, and assigns (collectively, the “Released Parties”) from any and all claims, actions, causes of action,
grievances, suits, charges, or complaints of any kind or nature whatsoever, that she ever had or now has (through the Separation Date),
whether fixed or contingent, liquidated or unliquidated, known or unknown, suspected or unsuspected, and whether arising in tort, contract,
statute, or equity, before any federal, state, local, or private court, agency, arbitrator, mediator, or other entity, regardless of the
relief or remedy; provided, however, and subject to Paragraph 5 below, the Agreement is not intended to and does not limit the Executive’s
right to file a charge or participate in an investigative proceeding of the Equal Employment Opportunity Commission (“EEOC”)
or another governmental agency. Without limiting the generality of the foregoing, it being the intention of the parties to make this release
as broad and as general as the law permits, this release specifically includes, but is not limited to, and is intended to explicitly release:
any claims under the Employment Agreement by and between the Company and Executive, dated February 22, 2006 (the “Employment
Agreement”); and any and all subject matter and claims arising from any alleged violation by the Released Parties under the
Age Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act of 1990; the Fair Labor Standards Act;
Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991 (42 U.S.C.
§ 1981); the Rehabilitation Act of 1973, as amended; the Employee Retirement Income Security Act of 1974, as amended (whether such
subject matter or claims are brought on an individual basis, a class representative basis, or otherwise on behalf of an employee benefit
plan or trust); the Kansas Act Against Discrimination, the Kansas Age Discrimination in Employment Act, the Kansas wage payment statutes,
and other similar state or local laws; the Americans with Disabilities Act; the Family and Medical Leave Act; the Genetic Information
Nondiscrimination Act of 2008; the Worker Adjustment and Retraining Notification Act; the Equal Pay Act; Executive Order 11246; Executive
Order 11141; and any other statutory claim, tort claim, employment or other contract or implied contract claim, or common law claim for
wrongful discharge, breach of an implied covenant of good faith and fair dealing, defamation, invasion of privacy, or any other claim,
arising out of or involving her employment with the Company, her services to the Parent, the termination of her employment with the Company,
or involving any other matter, including but not limited to the continuing effects of her employment with the Company, her services to
the Parent, or termination of employment with the Company.
The
Executive further acknowledges that she is aware that statutes exist that render null and void releases and discharges of any claims,
rights, demands, liabilities, action and causes of action which are unknown to the releasing or discharging party at the time of execution
of the release and discharge. The Executive hereby expressly waives, surrenders and agrees to forego any protection to which she would
otherwise be entitled by virtue of the existence of any such statute in any jurisdiction including, but not limited to, the State of Kansas.
The foregoing notwithstanding, the Company and the Parent hereby acknowledge and agree that the foregoing release shall not apply with
respect to the Executive’s right (i) to enforce the terms of this Agreement and to receive payment of amounts or benefits
hereunder, including, without limitation, the Separation Payment and COBRA Payment, (ii) any vested benefits Executive previously
earned and was entitled to prior to termination (including Company stock, which previously vested and is owned by Executive); (iii) to
benefits due to terminated employees under any employee benefit plan of the Company, the Parent or any of their affiliates in which the
Executive participated (excluding any severance or similar plan or policy), in accordance with the terms thereof (including COBRA rights),
(iv) to indemnification as an officer and director of the Company and the Parent in accordance with the Company’s and the Parent’s
certificate of incorporation and bylaws and the terms of any indemnification agreement with the Parent and/or the Company to which the
Executive is a party as of the date hereof, and to continued coverage under the Company’s and its Parent’s Directors and Officers
liability insurance policies as in effect from time to time; and (v) to take any action as set forth in Paragraph 8.
5. Covenant
Not to Sue. The Executive, for herself, her heirs, executors, administrators, successors and assigns agrees not to bring, file, claim,
sue or cause, assist, or permit to be brought, filed, or claimed any action, cause of action, or proceeding regarding or in any way related
to any of the claims described in Paragraph 4 above, and further agrees that this Agreement will constitute and may be pleaded as, a bar
to any such claim, action, cause of action or proceeding. If the Executive files a charge or participates in an investigative proceeding
of the EEOC or another governmental agency, or is otherwise made a party to any proceedings described in Paragraph 4 above, the Executive
will not seek and will not accept any personal equitable or monetary relief in connection with such charge or investigative or other proceeding.
6. No
Disparaging, Untrue Or Misleading Statements. Executive represents that she has not made, and agrees that she will not make, to any
third party any disparaging, untrue, or misleading written or oral statements about or relating to the Company, or its products or services
(or about or relating to any officer, director, agent, employee, or other person acting on the Company’s behalf). The Company agrees
to direct its “named executive officers”, as such term is defined under Item 402 of Regulation S-K promulgated by the Securities
and Exchange Commission, and Board of Directors not to make, and use reasonable efforts to ensure that such named executive officers and
Directors will not make to any third party any disparaging, untrue, or misleading written or oral statements about or relating to Executive.
The foregoing provision shall not be effective with respect to any information required to be disclosed by the Executive, Company or named
executive officers by the order of a court or administrative agency, subpoena or other legal or administrative demand, or as permitted
within Paragraph 8.
7. Protective
Agreement.
(a) Acknowledgements.
Executive acknowledges and agrees that (i) during her employment with the Company, because of the nature of her responsibilities
and the resources provided by the Company, she acquired and/or developed valuable and confidential skills, information, trade secrets,
and relationships with respect to the Business (as hereinafter defined) of the Company; (ii) she developed on the Company’s
behalf a personal relationship with various persons, including but not limited to representatives of customers and suppliers, where Executive
may have been a principal or its only contact with such persons, and as a consequence, occupied a position of trust and confidence to
the Company; (iii) the Business involves the manufacturing, marketing, and sale of the Company’s products and services to customers
throughout the world, the Company’s competitors, both in the United States and internationally, consist of both domestic and international
businesses, and the services performed by Executive involved aspects of the Company’s domestic and international business; and (iv) it
would have been impossible or impractical for Executive to perform her duties without access to the Company’s confidential and proprietary
information and contact with persons who are valuable to the Company’s Business and goodwill. For purposes of this Paragraph 7,
“Business” shall mean the manufacture, fabrication, maintenance, repair, overhaul, and modification of aerostructures and
aircraft components, and the marketing and selling of the Company’s products and services to customers throughout the world.
(b) Reasonableness.
In view of the foregoing and in consideration of the remuneration paid and to be paid to Executive, she agrees that it is reasonable and
necessary for the protection of the Company’s Business and goodwill that she undertakes the covenants in this Paragraph 7 regarding
her conduct subsequent to Executive’s employment by the Company, and acknowledge that the Company will suffer irreparable injury
if she engages in any conduct prohibited by this Paragraph 7.
(c) Non-Compete.
For one year following the Separation Date (the “Non-Competition Period”), neither Executive nor any individual, corporation,
partnership, limited liability company, trust, estate, joint venture, or other organization or association (“Person”) with
her assistance nor any Person in which she 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, serve as an officer or director of, solicit sales for,
invest in, participate in, advise, consult with, or be connected with the ownership, management, operation, or control of any business
that is engaged, in whole or in part, in the Business, or any business that is competitive with the Business or any portion thereof, except
for the Company’s exclusive benefit unless Executive obtains Spirit’s prior written consent to said employment, which consent
shall not be unreasonably withheld. Executive will not be deemed to have breached the provisions of this Paragraph 7 solely by holding,
directly or indirectly, not greater than 2% of the outstanding securities of a company listed on a national securities exchange.
(d) Non-Solicitation.
During the Non-Competition Period, neither Executive nor any Person with her assistance nor any Person in which she directly or indirectly
has an interest of any kind (without limitation) will, directly or indirectly (A) solicit or take any action to induce any employee
to quit or terminate their employment with the Company, or its affiliates; or (B) employ as an employee, independent contractor,
consultant, or in any other position any person who was an employee of the Company, or its affiliates during the aforementioned period.
(e) Confidentiality.
(i) Confidential
Information. For purposes of this Agreement, “Confidential Information” means this Agreement and any information related
to this Agreement, as well as any information (whether in written, oral, graphic, schematic, demonstration, or electronic format, whether
or not specifically marked or identified as confidential, and whether obtained by Executive before or after the effective date of this
Agreement) not otherwise publicly disclosed by the Company, regarding (without limitation) the Company, any Parent company or companies,
the Company’s or the Parent’s respective Businesses, customers, suppliers, business partners, prospects, contacts, contractual
arrangements, discussions, negotiations, evaluations, labor negotiations, bids, proposals, aircraft programs, costs, pricing, financial
condition or results, plans, strategies, governmental relations, projections, analyses, methods, processes, models, tooling, know-how,
trade secrets, discoveries, research, developments, inventions, engineering, technology, proprietary information, intellectual property,
designs, computer software, intelligence, legal or regulatory compliance, accounting decisions, opportunities, challenges, and any other
information of a confidential or proprietary nature. Notwithstanding the foregoing, Confidential Information will not include any information
that (A) Executive are required to disclose by the order of a court or administrative agency, subpoena, or other legal or administrative
demand, so long as (1) Executive give the Company written notice and an opportunity to contest or seek confidential treatment of
such disclosure; and (2) Executive fully cooperate at the Company’s expense with any such contest or confidential treatment
request; (B) has been otherwise publicly disclosed or made publicly available by the Company; or (C) is otherwise generally
known to the public other than as the result of a breach by Executive of the terms of this Agreement.
(ii) Non-Use
and Non-Disclosure. Without the Company’s express written consent, Executive will not at any time use for any purpose (other
than for the Company’s exclusive benefit) or disclose to any Person (except at the Company direction) any Confidential Information,
except that Executive may disclose this Agreement and information related to this Agreement to Executive’s spouse, attorney, or
CPA, so long as they agree to maintain the confidentiality of such documents and information.
(f) Effect
of Breach. Executive agree that a breach of this Paragraph 7 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,
accounting, or disgorgement of profit or the amounts paid to Executive under the terms of this Agreement), to an injunction restraining
such breach or a threatened breach and to specific performance of such provisions, and Executive consent to the issuance of such injunction
and the ordering of specific performance without the requirement for the Company to post a bond or other security or to prove lack of
an adequate remedy at law.
(g) Other
Rights Preserved. Nothing in this Paragraph 7 eliminates or diminishes rights the Company may have with respect to the subject matter
hereof under other agreements, its governing documents or statutes, or provisions of law (including but not limited to common law and
the Uniform Trade Secrets Act), equity, or otherwise, including those rights set forth within Paragraph 8. Without limiting the foregoing,
this provision does not limit any rights the Company may have under any of its policies or any other agreements with Executive regarding
Confidential Information, which remain in effect and are incorporated herein by reference, and Executive acknowledge that Executive are
subject to the most-restrictive terms contained in this or any other agreement or policy.
(h) Future
Opportunities. In the event Executive have questions or concerns related to the applicability of this Paragraph 7 to an employment,
consulting, or other opportunity, Executive may contact the Spirit Law Department in order to determine the Company’s position on
a course of action.
8. Permitted
Activities. Notwithstanding any other provision of this Agreement, nothing in this Agreement is intended to, or does, preclude Executive
from (i) contacting, reporting to, responding to an inquiry from, filing a charge or complaint with, communicating with, or otherwise
participating in an investigation conducted by, the EEOC, the Department of Labor, the National Labor Relations Board, the Occupational
Safety and Health Administration, the Securities and Exchange Commission, or any other federal, state, or local governmental agency, commission,
or regulatory body; (ii) giving truthful testimony or making statements under oath in response to a subpoena or other valid legal
process or in any legal proceeding; (iii) otherwise making truthful statements as required by law or valid legal process; (iv) engaging
in any concerted or other legally protected activities; or (v) disclosing a trade secret in confidence to a governmental official,
directly or indirectly, or to an attorney, if the disclosure is made solely for the purpose of reporting or investigating a suspected
violation of law.
Furthermore, notwithstanding
the provisions herein, the Executive is hereby notified that the immunity provisions in Section 1833 of title 18 of the United States
Code provide that an individual cannot not be held criminally or civilly liable under any federal or state trade secret law for the disclosure
of a trade secret that (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly,
or to an attorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made
in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The Executive likewise
understands that, if the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive
may disclose the Company’s trade secret(s) to her attorney and use the trade secret information in the court proceeding, if
the Executive (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except
pursuant to court order.
9. Severability.
If any provision of this Agreement shall be found by a court of competent jurisdiction to be invalid or unenforceable, in whole or in
part, then such provision shall be construed and/or modified or restricted to the extent and in the manner necessary to render the same
valid and enforceable, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed
and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted,
or as if such provision had not been originally incorporated herein, as the case may be. The parties further agree to seek a lawful substitute
for any provision found to be unlawful; provided, that, if the parties are unable to agree upon a lawful substitute, the parties desire
and request that a court or other authority called upon to decide the enforceability of this Agreement modify the Agreement so that, once
modified, the Agreement will be enforceable to the maximum extent permitted by the law in existence at the time of the requested enforcement.
10. Waiver.
A waiver by the Company of a breach of any provision of this Agreement by the Executive shall not operate or be construed as a waiver
or estoppel of any subsequent breach by the Executive. No waiver shall be valid unless in writing and signed by an authorized officer
of the Company.
11. Miscellaneous
Provisions.
(a) [Reserved]
(b) Representation.
The Executive represents and certifies that she has carefully read and fully understands all of the provisions and effects of this Agreement,
has knowingly and voluntarily entered into this Agreement freely and without coercion, and acknowledges that the Company advised her to
consult with an attorney prior to executing this Agreement. The Executive is voluntarily entering into this Agreement and neither the
Company nor its employees, officers, directors, representatives, attorneys or other agents made any representations concerning the terms
or effects of this Agreement other than those contained in the Agreement itself and the Executive is not relying on any statement or representation
by the Company or any other Released Parties in executing this Agreement. The Executive is relying on her own judgment and that of her
attorney to the extent so retained. The Executive also specifically affirms that this Agreement clearly expresses her intent to waive
fraudulent inducement claims, and that she disclaims any reliance on representations about any of the specific matters in dispute.
(c) Return
of Property. The Executive representatives that she has returned to the Company all of the Company’s and the Parent’s
and their respective subsidiaries property that is in the Executive’s possession, custody or control, including, without limitation,
(i) all keys, access cards, badges, credit cards, mobile devices, computer hardware, computer software, data, materials, documents,
records, policies, client and customer information, marketing information, design information, specifications and plans, data base information
and lists, and any other property or information of the Company, the Parent and their subsidiaries (whether those materials are in paper
or computer-stored form), and (ii) all documents and other property containing, summarizing, or describing any Confidential Information,
including all originals and copies.
12. Complete
Agreement. This Agreement sets forth the entire agreement between the parties, and fully supersedes any and all prior agreements or
understandings, whether oral or written, between the parties pertaining to actual or potential claims arising from the Executive’s
employment with the Company and the Parent. The Company’s payment obligations under this Agreement shall become effective on the
Effective Date, contingent upon the Executive’s compliance with her obligations hereunder. The Executive expressly warrants and
represents that no promise or agreement which is not herein expressed has been made to her in executing this Agreement. The Executive
further expressly represents and warrants that she will not hereafter seek reinstatement, recall or re-employment with the Company, the
Parent or any of their respective subsidiaries or affiliates.
13. No
Admission of Liability. The Executive understands and acknowledges that this Agreement constitutes a compromise and settlement of
any and all actual or potential disputed claims by the Executive. No action taken by the Company hereto, either previously or in connection
with this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity of any actual or potential claims
or (b) an acknowledgment or admission by the Company of any fault or liability whatsoever to the Executive or any third party.
14. Reimbursement.
If the Executive or her heirs, executors, administrators, successors or assigns (a) is in breach of or breaches Paragraphs 4, 5,
6, 7, 11(c) or 16 of this Agreement, (b) attempts to challenge the enforceability of this Agreement, or (c) files a charge
of discrimination, a lawsuit of any kind or nature against one or more of the Released Parties, or a claim of any kind or nature against
one or more of the Released Parties, the Executive or her heirs, executors, administrators, successors or assigns shall be obligated to
tender back to the Company, as a contractual remedy hereunder, all payments made to her or them under Paragraph 2 of this Agreement, or
any amount of actual damages proven by the Company, if greater. The Company and the Executive acknowledge that the remedy set forth hereunder
is not to be considered a form of liquidated damages and the tender back shall not be the exclusive remedy hereunder.
15. Future
Cooperation. Upon reasonable request, Executive agrees to provide assistance and cooperation, without the necessity of subpoena, in
any matter or matters (including but not limited to any regulatory, law enforcement or judicial investigations or proceedings, mediations,
arbitrations or lawsuits, or similar action) of which the Company identifies Executive as potentially having knowledge (or otherwise relating
to Executive’s expertise or experience), where deemed appropriate by the Company, including providing information, preparing for,
and/or attending any hearing or proceeding (whether relating to the Company’s defense or prosecution of any existing or future actions,
arbitrations, claims or litigations or otherwise). The Company will reimburse the Executive for the reasonable costs and expenses incurred
by the Executive, including any lost wages, in connection therewith, provided however, that such reimbursements (i) are not
intended to influence in any way the testimony Executive gives under oath, and Executive agrees to testify truthfully and (ii) do
not encompass attorney’s fees incurred by Executive. The Company’s agreement to reimburse Executive through this Agreement
is not based, conditioned or contingent in any way on the substance, content or efficacy of Executive’s testimony, or the outcome
of any particular matter. Furthermore, the Company agrees and acknowledges it will take reasonable effort to ensure that such request(s) shall
not materially interfere with Executive’s future employment and/or compensation.
16. Amendment.
This Agreement may not be altered, amended, or modified except in writing signed by both the Executive and the Company.
17. Joint
Participation. The parties hereto participated jointly in the negotiation and preparation of this Agreement, and each party has had
the opportunity to obtain the advice of legal counsel and to review and comment upon the Agreement. Accordingly, it is agreed that no
rule of construction shall apply against any party or in favor of any party. This Agreement shall be construed as if the parties
jointly prepared this Agreement, and any uncertainty or ambiguity shall not be interpreted against one party and in favor of the other.
18. Time
in Which to Consider. The Executive shall have twenty-one (21) days in which to consider this Agreement, although the Executive may
accept this Agreement at any time prior to the expiration of such twenty-one (21)-day period. Any changes to this Agreement, whether material
or immaterial, do not restart the running of the consideration period.
19. Revocation
and Effective Date. The Executive may revoke any acceptance of this Agreement within seven (7) days, and this Agreement shall
not become binding or enforceable until this seven (7) day period has expired without the Executive having so revoked. This Agreement
shall become effective on the eighth (8th) day following the Executive’s signing of this Agreement (the “Effective Date”).
To revoke this Agreement, the Executive must provide a signed written notice of revocation addressed to Mindy McPheeters, Spirit Senior
Vice President, General Counsel & Corporate Secretary, 3801 S. Oliver St., Wichita, Kansas 67210, postmarked or placed for delivery
by a common carrier for overnight delivery no later than the seventh (7th) day after the Executive executes this Agreement.
20. Applicable
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Kansas, and any court action
commenced to enforce this Agreement shall have as its sole and exclusive venue the County of Sedgwick, Kansas. In addition, the Executive
and the Company waive any right she or it may otherwise have to a trial by jury in any action to enforce the terms of this Agreement.
21. Execution
of Agreement. This Agreement may be executed in counterparts, each of which shall be considered an original, but which when taken
together, shall constitute one Agreement. This Agreement, to the extent signed and delivered by means of a facsimile machine or by PDF
file (portable document format file), shall be treated in all manner and respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were the originally signed version delivered in person. At the request of any
party hereto, each other party shall re-execute original forms hereof and deliver them to all other parties.
PLEASE READ THIS AGREEMENT AND CAREFULLY CONSIDER
ALL OF ITS PROVISIONS BEFORE SIGNING IT. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING THOSE UNDER
THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, AND OTHER FEDERAL, STATE AND LOCAL LAWS PROHIBITING DISCRIMINATION IN EMPLOYMENT.
THE
EXECUTIVE ACKNOWLEDGES AND UNDERSTANDS THAT SHE HAS BEEN AFFORDED TWENTY-ONE (21) DAYS
TO CONSIDER THE AGREEMENT AND TO HAVE THE AGREEMENT REVIEWED BY HER ATTORNEY, IF SHE SO CHOOSES. THE EXECUTIVE FURTHER UNDERSTANDS
THAT SHE HAS SEVEN (7) DAYS TO REVOKE THE AGREEMENT AFTER THE DATE SHE SIGNS THE AGREEMENT.
IN WITNESS WHEREOF, the Executive, the Company
and the Parent have voluntarily signed this Separation Agreement and General Release effective as of the first date set forth above.
SPIRIT AEROSYSTEMS, INC. | |
SAMANTHA MARNICK |
| |
|
By: |
/s/
Justin Welner | |
|
| |
|
Its: Senior Vice
President, | |
|
Chief
Administration & Compliance Officer | |
/s/
Samantha Marnick |
| |
|
| |
|
SPIRIT AEROSYSTEMS
HOLDINGS, INC. | |
|
| |
|
By: |
/s/
Justin Welner | |
|
Its: Senior Vice
President, | |
|
Chief Administration &
Compliance Officer | |
|
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