As filed with the Securities and Exchange Commission on September 6, 2017
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPIRIT AEROSYSTEMS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE |
|
20-2436320 |
(State or other jurisdiction of
|
|
(I.R.S. Employer
|
3801 South Oliver
Wichita, Kansas 67210
(Address of principal executive offices)
SPIRIT AEROSYSTEMS EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Thomas C. Gentile III
President and Chief Executive Officer
Spirit AeroSystems Holdings, Inc.
3801 South Oliver
Wichita, Kansas 67210
(316) 526-9000
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
Stacy Cozad, Esq. |
|
Mark S. Kingsley, Esq. |
Senior Vice President, General Counsel, |
|
Arnold & Porter Kaye Scholer LLP |
Chief Compliance Officer and Secretary |
|
250 West 55 th Street |
Spirit AeroSystems Holdings, Inc. |
|
New York, New York 10019 |
3801 South Oliver |
|
(212) 836-8000 |
Wichita, Kansas 67210 |
|
|
(316) 526-9000 |
|
|
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer |
x |
Accelerated filer |
o |
|
|
|
|
Non-accelerated filer |
o (Do not check if a smaller reporting company) |
Smaller reporting company |
o |
|
|
|
|
|
|
Emerging growth company |
o |
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 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|||
|
|
|
|
Proposed |
|
Proposed |
|
|
|
|||
Title of |
|
|
|
Maximum |
|
Maximum |
|
Amount of |
|
|||
Securities to |
|
Amount to be |
|
Offering Price Per |
|
Aggregate |
|
Registration |
|
|||
be Registered |
|
Registered (1) |
|
Share (2) |
|
Offering Price (2) |
|
Fee (2) |
|
|||
Class A Common Stock, par value $0.01 per share (Class A Common Stock) |
|
1,000,000 shares |
|
$ |
72.98 |
|
$ |
72,980,000 |
|
$ |
8,458.38 |
|
(1) |
This registration statement covers up to 1,000,000 shares of Class A Common Stock available for issuance under the Spirit AeroSystems Employee Stock Purchase Plan (the ESPP). Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the Securities Act), this registration statement shall also cover any additional shares of Class A Common Stock that become issuable under the ESPP by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Class A Common Stock. |
|
|
(2) |
Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum offering price in respect of the ESPP have been determined based on the average of the high and low prices reported on the New York Stock Exchange Composite Tape on August 30, 2017. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this registration statement will be sent or given to participants in our ESPP, as specified by Rule 428(b)(1) promulgated under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Spirit AeroSystems Holdings, Inc. (Spirit) with the Securities and Exchange Commission (the Commission) are incorporated by reference into this registration statement:
(a) The Annual Report on Form 10-K for the year ended December 31, 2016, filed by Spirit with the Commission on February 10, 2017.
(b) The Quarterly Reports on Form 10-Q for the quarters ended March 30, 2017 and June 29, 2017, filed by Spirit with the Commission on May 5, 2017 and August 4, 2017, respectively.
(c) The Current Reports on Forms 8-K and 8-K/A, filed by Spirit with the Commission on January 30, 2017, May 1, 2017 and July 27, 2017.
(d) The description of Spirits Class A Common Stock, which is contained in Amendment No. 1 to the Registration Statement on Form S-1 filed under the Securities Exchange Act of 1934 (the Exchange Act) on May 14, 2007, including any amendment or report filed for the purpose of updating such description.
All documents filed by Spirit pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all securities offered pursuant to this registration statement have been sold or which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the DGCL) provides that a corporation may indemnify its directors, officers, employees and agents and its former directors, officers, employees, and agents and those who serve, at the corporations request, in such capacities with another enterprise, against expenses, including attorneys fees, as well as judgments, fines, and settlements in nonderivative lawsuits, actually and reasonably incurred in connection with the defense of any action, suit, or proceeding in which they or any of them were or are made parties or are threatened to be made parties by reason of their serving or having served in such capacity. The DGCL provides, however, that such person must have acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the corporation and, in the case of a criminal action, such person must have had no reasonable cause to believe his or her conduct was unlawful. In addition, the DGCL does not permit indemnification in an action or suit by or in the right of the corporation, where such person has been adjudged liable to the corporation, unless, and only to the extent that, a court determines that such person fairly and reasonably is entitled to indemnity for costs the court deems proper in light of liability adjudication. Indemnity is mandatory to the extent a claim, issue or matter has been successfully defended.
Spirits Third Amended and Restated Certificate of Incorporation provides that none of its directors shall be personally liable to Spirit or its stockholders for monetary damages for breach of fiduciary duty as a director, except that a director may be liable for (i) any breach of the directors duty of loyalty to Spirit or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) the payment of unlawful dividends and unlawful repurchase or redemption of Spirits capital stock prohibited by Section 174 of the DGCL, and (iv) any transaction from which the director derived any improper personal benefit.
Spirits Sixth Amended and Restated Bylaws provide for the indemnification of Spirits directors and officers to the fullest extent permitted by the DGCL.
Additionally, Spirit has entered into indemnification agreements with certain of its directors and officers which may, in certain cases, be broader than the specific indemnification provisions contained in Spirits Third Amended and Restated Certificate of Incorporation and Sixth Amended and Restated Bylaws. The indemnification agreements may require Spirit, among other things, to indemnify such officers and directors against certain liabilities that may arise by reason of their status or service as directors, officers, or employees of Spirit and to advance the expenses incurred by such parties as a result of any threatened claims or proceedings brought against them as to which they could be indemnified.
Spirits directors and officers are covered by insurance policies maintained by Spirit against certain liabilities for actions taken in their capacities as such, including liabilities under the Securities Act or the Exchange Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. |
|
Description |
|
|
|
4.1 |
|
Specimen Copy of Spirits Class A Common Stock Certificate (incorporated herein by reference to Spirits Amendment No. 5 to Form S-1 (Commission File No. 333-135486) filed on November 17, 2006) |
|
|
|
4.2 |
|
Spirit AeroSystems Employee Stock Purchase Plan, as amended |
|
|
|
5.1 |
|
Opinion of Arnold & Porter Kaye Scholer LLP |
|
|
|
23.1 |
|
Consent of Ernst & Young LLP |
|
|
|
23.2 |
|
Consent of Arnold & Porter Kaye Scholer LLP is contained in Exhibit 5.1 to this registration statement |
|
|
|
24.1 |
|
Power of Attorney is contained on the first signature page of this registration statement |
Item 9. Undertakings.
(a) Spirit hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form or prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement.
Provided , however , that:
Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by Spirit pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) Spirit hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Spirits annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Spirit pursuant to the provisions described under Item 6 - Indemnification of Directors and Officers or otherwise, Spirit has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Spirit of expenses incurred or paid by a director, officer or controlling person of Spirit in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Spirit will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
INDEX TO EXHIBITS
4.1 |
|
|
|
|
|
4.2 |
|
|
|
|
|
5.1 |
|
|
|
|
|
23.1 |
|
|
|
|
|
23.2 |
|
|
|
|
|
24.1 |
|
Power of Attorney is contained on the first signature page of this registration statement |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Spirit certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wichita, State of Kansas on September 6, 2017.
|
SPIRIT AEROSYSTEMS HOLDINGS, INC. |
|
|
|
|
|
|
|
|
By: |
/s/ Sanjay Kapoor |
|
Name: Sanjay Kapoor |
|
|
Title: Executive Vice President and Chief Financial Officer |
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated. In addition, the following persons hereby constitute and appoint SANJAY KAPOOR and THOMAS C. GENTILE III and both or either one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Thomas Gentile III |
|
President, Chief Executive Officer and Director |
|
September 6, 2017 |
THOMAS GENTILE III |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Sanjay Kapoor |
|
Executive Vice President and Chief Financial Officer |
|
September 6, 2017 |
SANJAY KAPOOR |
|
(Principal Financial Officer) |
|
|
|
|
|
|
|
/s/ Mark Suchinski |
|
Vice President and Corporate Controller |
|
September 6, 2017 |
MARK SUCHINSKI |
|
(Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/ Charles Chadwell |
|
Director |
|
September 6, 2017 |
CHARLES CHADWELL |
|
|
|
|
|
|
|
|
|
/s/ Irene Esteves |
|
Director |
|
September 6, 2017 |
IRENE ESTEVES |
|
|
|
|
|
|
|
|
|
/s/ Paul Fulchino |
|
Director |
|
September 6, 2017 |
PAUL FULCHINO |
|
|
|
|
|
|
|
|
|
/s/ Richard Gephardt |
|
Director |
|
September 6, 2017 |
RICHARD GEPHARDT |
|
|
|
|
|
|
|
|
|
/s/ Robert Johnson |
|
Director |
|
September 6, 2017 |
ROBERT JOHNSON |
|
|
|
|
|
|
|
|
|
/s/ Ronald Kadish |
|
Director |
|
September 6, 2017 |
RONALD KADISH |
|
|
|
|
|
|
|
|
|
/s/ John Plueger |
|
Director |
|
September 6, 2017 |
JOHN PLUEGER |
|
|
|
|
|
|
|
|
|
/s/ Francis Raborn |
|
Director |
|
September 6, 2017 |
FRANCIS RABORN |
|
|
|
|
SPIRIT AEROSYSTEMS EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
1.1 Purpose . The purpose of this Spirit AeroSystems Employee Stock Purchase Plan is to provide employees of Spirit AeroSystems Holdings, Inc. (the Company ), Spirit AeroSystems, Inc. ( Spirit ), and any other Participating Company with an opportunity to purchase shares of common stock of the Company under a plan that satisfies the requirements of an employee stock purchase plan under Section 423 of the Internal Revenue Code.
In addition, this Plan provides for the purchase of shares under a plan which is not subject to Section 423 of the Code pursuant to rules, procedures, or sub-plans adopted by the Committee designed to achieve tax, securities law, or other objectives for eligible employees of Designated Affiliates of the Company. Except as otherwise provided herein, the portion of the Plan that does not satisfy the requirements of Code Section 423 will operate and be administered in the same manner as the portion of the Plan that does satisfy such requirements.
2. DEFINITIONS
2.1 Account means the brokerage account maintained on behalf of each participant by the Recordkeeper for the purpose of investing in Stock and engaging in other transactions permitted under the Plan.
2.2 Affiliate means a Subsidiary or other entity in which the Company has a direct or indirect controlling interest.
2.3 Board of Directors or Board means the board of directors of the Company.
2.4 Committee means the Compensation Committee of the Board of Directors or a subcommittee thereof or any other committee designated by the Board to administer this Plan. The Board may take any action under the Plan that would otherwise be the responsibility of the Committee.
2.5 Code means the Internal Revenue Code of 1986, as amended from time to time, including regulations issued thereunder and successor provisions and regulations thereto.
2.6 Company means Spirit AeroSystems Holdings, Inc.
2.7 Compensation means base salary or other base pay, overtime, and shift differential pay paid during the calendar year before elective payroll deduction contributions to any employee benefit plan or program offered by the Company. The Committee may, in its discretion, establish a different definition of Compensation on a uniform and nondiscriminatory basis for any subsequent Offering Period.
2.8 Designated Affiliate means any Affiliate that is designated by the Committee to be eligible to participate in the portion of the Plan that is not subject to Code Section 423.
2.9 Employee means any common law employee who is employed by the Company, a Participating Company, or a Designated Affiliate. If an individual is not classified by the employer as a common law employee, no reclassification of a persons status with the employer, for any reason, without regard to whether it is initiated by a court, governmental agency, or otherwise, and without regard to whether or not the employer agrees to such reclassification, either retroactively or prospectively, will result in the person being regarded as a common law employee during such time or as an Employee for purposes of this Plan.
Notwithstanding the foregoing, employees who are citizens or residents of a foreign jurisdiction (without regard to whether they are also citizens of the United States or resident aliens) will not be treated as Employees of the Company or a Participating Company for purposes of the Plan if either the grant of an option under the Plan to a citizen or resident of the foreign jurisdiction is prohibited under the laws of such jurisdiction or compliance with the laws of the foreign jurisdiction would cause the portion of the Plan that is intended to be subject to Code Section 423 to violate the requirements of such Code Section.
2.10 Fair Market Value means the fair market value of a share of Stock, which, as of any given date, will be the average of the highest and lowest sales prices of a share of Stock reported on a consolidated basis for securities listed on the New York Stock Exchange for trades on the date as of which such value is being determined or, if that day is not a Trading Day, then on the immediately preceding Trading Day.
2.11 Offering Period means the approximately six-month period beginning on the first Trading Day on or after April 1 and October 1 of a calendar year and ending on the last Trading Day in September and March, respectively, of such calendar year, except that the initial six-month period will begin on the first Trading Day in October 2017 and end on the last Trading Day in March 2018. See also Section 4.2 regarding the Committees power to make changes with respect to future Offering Periods.
2.12 Participating Company means (i) the Company, (ii) Spirit, and (iii) each present or future Subsidiary designated by the Committee as eligible to participate in the portion of this Plan that is subject to Code Section 423. The Committee may designate Participating Companies from time to time from among a group consisting of the Company and its Subsidiaries. The group from among which such designations are permitted without additional stockholder approval may include corporations or other entities that become Subsidiaries after the adoption and approval of the Plan.
Only Participating Companies may participate in the portion of the Plan subject to Code Section 423. A Participating Company will cease to be a Participating Company on the earlier of (i) the date the Committee determines that such entity is no longer a Participating Company, or (ii) when such Participating Company ceases for any reason to be a Subsidiary.
2.13 Plan means this Spirit AeroSystems Employee Stock Purchase Plan.
2.14 Purchase Date means the last Trading Day of each Offering Period.
2.15 Purchase Price means an amount equal to 95% of the Fair Market Value of a share of Stock on the Purchase Date. However, for any future Offering Period, the Committee will have the authority, in its discretion, to make either of the following changes in the Purchase Price for that Offering Period, so long as the change is uniform for all participants:
(a) The Purchase Price may be determined by reference to a higher or lower percentage of the Fair Market Value of a share of Stock, so long as the percentage is not lower than 85% and not higher than 100%.
(b) The Purchase Price may be a designated percentage (not lower than 85% or higher than 100%) of the Fair Market Value of a share of Stock, determined as of the first Trading Day of the Offering Period or the last Trading Day of the Offering Period, whichever is lower.
2.16 Recordkeeper means Computershare, or its successor, or such replacement recordkeeper as may be appointed or contracted to assist with the recordkeeping and administration of this Plan.
2.17 Reserves means the number of shares of Stock covered by all options under the Plan that have not yet been exercised and the number of shares of Stock which have been authorized for issuance under the Plan but which have not yet become subject to options.
2.18 Stock means the Companys Class A common stock and such other securities as may be substituted (or resubstituted) for Stock pursuant to Section 10.6.
2.19 Subsidiary means any corporation or other entity (other than the Company) in an unbroken chain of entities beginning with the Company, if (a) each of the entities other than the last entity in the unbroken chain owns stock or other ownership interests possessing 50% or more of the total combined voting power in one of the other entities in such chain, or (b) the entity otherwise satisfies the requirements of Code Section 424(f) and applicable regulations and other guidance issued thereunder.
2.20 Trading Day means a day on which the New York Stock Exchange is open for trading.
3. ELIGIBILITY AND PARTICIPATION
3.1 Initial Eligibility . Each Employee is eligible to participate in the Plan beginning on the later of the date the participant first becomes an Employee or October 1, 2017, except that, with respect to employees of a Designated Affiliate, only those specified employees who work for a Designated Affiliate in a particular country or countries as determined by the Committee may participate in the Plan. All Employees working for a Participating Company may participate in the Plan except as otherwise provided herein.
3.2 Participation . An Employee may become a participant in the Plan by giving instructions to the Recordkeeper authorizing payroll deductions. Participant instructions must be
given at such time and in such form and manner as may be prescribed by the Committee or its designee. Payroll deductions for an Employee will begin as soon as administratively feasible after the instructions are received in good order. All elections to participate in the Plan must be made in compliance with the Companys insider trading policies and such rules and procedures as may be established by the Committee or its delegates in connection therewith.
3.3 Restrictions on Participation . Notwithstanding any provisions of the Plan to the contrary, no Employee will be granted an option to participate in the Plan to the extent that:
(a) Immediately after the grant, such Employee would own stock and/or hold outstanding options to purchase stock possessing 5% or more of the total combined voting power or value of all classes of the Companys stock (determined under the rules of Section 424(d) of the Code); or
(b) The Employees rights to purchase Stock under the Plan would accrue at a rate that exceeds $25,000 in fair market value of the Stock (determined at the time such option is granted) for each calendar year in which such option is outstanding.
4. OFFERINGS
4.1 Semi-Annual Offerings . The Plan will be implemented by semi-annual offerings of Stock beginning on the first Trading Day on or after April 1 and October 1 of each calendar year and terminating on the last Trading Day of September and March of such calendar year, respectively, except that the first Offering Period will begin on the first Trading Day of October 2017 and end on the last Trading Day of March 2018.
4.2 Changes in Offering Periods . The Committee will have the power to change the beginning date, ending date, and duration of Offering Periods with respect to future offerings without stockholder approval if such change is announced at least five days before the scheduled beginning of the first Offering Period to be affected thereafter, provided that Offering Periods will in all cases comply with applicable limitations under Code Section 423(b)(7).
5. PAYROLL DEDUCTIONS
5.1 Amount and Timing of Deduction .
(a) A participant may elect to have deductions made for each payroll period during an Offering Period in an amount equal to any whole percentage of the participants Compensation received for the payroll period, subject to the limitations of Section 3.3, except that the maximum amount of payroll deductions may not exceed (i) a specified maximum percentage of the participants Compensation for each payroll period as may be designated from time to time by the Committee (which initially will be 15%), or (ii) $25,000 for each year (or such lower annual dollar limit as may be designated by the Committee). The Committee, in its discretion, may increase and decrease the maximum percentage amount (but not the maximum dollar amount) contemplated under the immediately preceding sentence without formally amending the Plan, so long as the maximum percentage amount is a uniform percentage of Compensation for all participants.
(b) The time and manner in which payroll deduction elections must be made will be established pursuant to rules and procedures adopted by the Committee, in its discretion. Such rules may provide (among other things) that participants must make payroll deduction elections within a sufficient period before the beginning of an Offering Period to allow for processing and implementation of such elections by the beginning of the Offering Period.
(c) If a participant is not paid through the participants employers payroll (e.g., the participant is paid by a third party payroll vendor), the Committee or its delegate will establish such reasonable and uniform policies and procedures to facilitate contribution to an Account by any such participant wishing to participate with respect to an Offering Period.
5.2 Continuation of Payroll Deduction . A participants payroll deduction election will automatically remain in effect for successive Offering Periods, unless modified or terminated in accordance with the terms of the Plan.
5.3 Participants Account . An individual Account will be maintained by the Recordkeeper for each participant in the Plan. All payroll deductions made for a participant (together with any other contributions permitted by the Plan or any rules or policies established by the Committee) will be credited to the participants Account. No interest will accrue or be paid on any payroll deductions or any other amounts credited to a participants Account.
5.4 Changes in Payroll Deductions . Once made, a participants payroll deduction election will remain in effect until the participant provides new instructions for a subsequent Offering Period, withdraws as provided in Section 7.1, or terminates employment as provided in Section 7.2. A participants payroll deduction election may not be modified during an Offering Period, except as provided in Sections 5.5 and 7.1
5.5 Withdrawal . Notwithstanding the limitations in Section 5.4, a participant may elect to withdraw from participation in the Plan at any time. Upon withdrawal, the provisions of Section 7.1 will apply. An election to withdraw from participation will become effective as soon as administratively feasible following the date such election is received by the Recordkeeper and will remain in effect for successive Offering Periods until the participant provides new instructions. A participant who withdraws from participation during an Offering Period may not again make a new payroll deduction election that is effective any sooner than the first Offering Period that begins on or after the date that is 12 months after the date of the participants withdrawal.
6. GRANT AND EXERCISE OF OPTION
6.1 Number of Option Shares . On the first day of each Offering Period, each Employee participating in such Offering Period will be granted an option to purchase, on the Purchase Date of such Offering Period at the applicable Purchase Price, up to a number of whole shares of Stock determined by dividing such Employees total payroll deduction
election in effect for such Offering Period by the Fair Market Value of a share of Stock on the first day of such Offering Period and rounding down to the nearest whole share, but subject to the limitations set forth in Section 3.3 ($25,000 and 5% limitations) and Section 8.1 (maximum number of shares). Exercise of the option will occur as provided in Section 6.2, unless the participant has withdrawn the amount credited to the participants Account upon withdrawal from the Plan pursuant to Section 7.1 or such amount has been distributed to the participant upon termination of employment pursuant to Section 7.2. To the extent not exercised, the option will expire on the last day of the Offering Period.
6.2 Automatic Purchase . A participants option for the purchase of shares will be exercised automatically on the Purchase Date. The number of shares purchased for such participant on the Purchase Date will be the lesser of (a) the maximum number of shares of Stock subject to the participants option (as determined under Section 6.1), or (b) the largest number of whole shares of Stock that may be purchased at the applicable Purchase Price with the accumulated payroll deductions credited to the participants Account. To the extent not automatically exercised as provided in this Section 6.2, the option will expire on the last day of the Offering Period. Any funds remaining in a participants Account after the Purchase Date will remain in the participants Account if the participant is continuing payroll deductions for the succeeding Offering Period and will be returned to the participant if the participant is not continuing payroll deductions for the succeeding Offering Period.
6.3 Transferability of Option . During a participants lifetime, options held by such participant will be exercisable only by that participant.
6.4 Delivery of Shares .
(a) At or as promptly as practicable after the Purchase Date for an Offering Period, the Company will deliver the shares of Stock purchased to the Recordkeeper to be deposited in the participants Accounts.
(b) Once a participant has acquired shares of Stock under the Plan, any cash dividends that are paid with respect to that Stock will be deposited in the participants Account for so long as that Stock remains credited to the participants Account.
(c) Each participant will be entitled to vote the number of shares of Stock credited to the participants Account on any matter as to which the approval of the Companys stockholders is sought. If a participant does not vote or grant a valid proxy with respect to shares credited to the participants Account, such shares will be voted by the custodian in accordance with any stock exchange or other rules governing the custodian in the voting of shares held for customer accounts. Similar procedures will apply in the case of any consent solicitation of the Companys stockholders.
7. WITHDRAWAL FROM PLAN AND TERMINATION OF EMPLOYMENT
7.1 Withdrawal from Plan Participation . If a participant elects to withdraw from the Plan during an Offering Period as provided in Section 5.5, the participant will be reimbursed, without interest, all of the payroll deductions credited to the participants Account during the current Offering Period, so long as the election to withdraw is made no later than five business days before the last day of such Offering Period. If the participant does not give proper instructions to the Recordkeeper to request withdrawal in a timely manner, the participant will be deemed to have elected to exercise the participants option for the purchase of Stock on the next following Purchase Date, and the participants withdrawal election will be effective as of the next succeeding Offering Period. A participant who withdraws from participation during an Offering Period may not again make a new payroll deduction election that is effective any sooner than the first Offering Period that begins on or after the date that is 12 months after the date of the participants withdrawal.
7.2 Termination of Employment . Upon a participants termination of employment with the Company and all Participating Companies for any reason (including termination because of the participants death), the payroll deductions credited to such participants Account during the Offering Period but not yet used to exercise the option will be returned, without interest, to such participant or, in the case of the participants death, to the person or persons entitled thereto under Section 10.1, and such participants option will be automatically terminated. The Recordkeeper will continue to maintain the participants Account until the earlier of such time as the participant withdraws or transfers all Stock in the Account, or two years after the participant ceases to be employed by the Company and all Participating Companies or Designated Affiliates.
7.3 Leave of Absence . If a participant goes on an authorized leave of absence for any reason, such participant will have the right to elect to: (a) withdraw all of the payroll deductions credited to the participants Account, as provided in Sections 5.5 and 7.1; (b) discontinue contributions to the Plan but have the amount credited to the participants Account used to purchase Stock on the next Purchase Date; or (c) remain a participant in the Plan during such leave of absence, authorizing deductions to be made from payments by the Company to the participant during such leave of absence and making cash payments to the Plan at the end of each payroll period to the extent that amounts payable by the Company to such participant are insufficient to meet such participants authorized Plan deductions. Any such elections, however, must be made in compliance with the Companys insider trading policies and such rules and procedures as may be established by the Committee or its delegates in connection therewith. Unless a participant on an authorized leave of absence returns to employment with the Company or a Participating Company or Designated Affiliate no later than the first anniversary of the first day of the participants authorized leave of absence, such participant will be deemed to have terminated employment as of the first anniversary of the first day of the leave of absence and the provisions of Section 7.2 will apply.
8. STOCK
8.1 Maximum Shares . The maximum number of shares of Stock that may be issued under the Plan is 1,000,000 shares of Stock, subject to adjustment upon changes in capitalization of the Company as provided in Section 10.6.
8.2 Share Usage . Shares of stock covered by an option that expires or remains unexercised after the latest date on which exercise may occur will again be available for option grants under the Plan.
8.3 Participants Interest in Option Stock . A participant will have no interest in Stock covered by the participants option until such option has been exercised.
9. ADMINISTRATION
9.1 Authority of the Committee . The Plan will be administered by the Committee. Subject to the express provisions of the Plan, the Committee will have full and discretionary authority to interpret and construe all provisions of the Plan, to adopt rules, regulations, policies, and procedures for administering the Plan, and to make any and all determinations deemed necessary or advisable for administering the Plan. The Committee may correct any defect or omission or reconcile any inconsistency in the Plan in the manner and to the extent it deems necessary or appropriate. The Committees determinations on the foregoing matters will be final and conclusive. The Committee may, in its discretion, delegate some or all of its authority to one or more employees or officers of the Company, in which case any references in this Plan to the Committee will also refer to such delegate.
The provisions of the portion of the Plan intended to be subject to Code Section 423 will be construed in a manner consistent with the requirements of that Code Section. The Committee will have the discretion to determine whether a Subsidiary will be a Participating Company with respect to the portion of the Plan subject to Code Section 423 and whether an Affiliate will be a Designated Affiliate with respect to the portion of the Plan not subject to Code Section 423.
Additionally, the Committee will have discretion to adopt rules regarding Plan administration to conform to local laws or to enable eligible employees of the Company, Participating Companies, and Designated Affiliates to participate in the Plan. The Committee may also adopt rules, procedures, or sub-plans applicable to particular Designated Affiliates, which sub-plans may be designed to be outside the scope of Code Section 423. Without limiting the generality of the foregoing, the Committee is specifically authorized to adopt rules and procedures regarding the handling of payroll deductions or other contributions by participants, payment of interest, conversion of local currency, data privacy and security, payroll tax, withholding procedures, and handling of stock certificates, which rules and procedures may vary according to local requirements, as part of the portion of the Plan not subject to Code Section 423.
The rules of any sub-plans designed to be outside the scope of Code Section 423 may take precedence over other provisions of the Plan, except that, unless otherwise
superseded by the terms of such sub-plan, the provisions of this Plan will govern the operation of such sub-plan and no such sub-plan may (i) supersede the provisions of Sections 3.3(a) and 8.1, (ii) provide participants with a discount (whether through a reduced purchase price or as a result of employer matching contributions) of greater than 15% of the Fair Market Value of a share of Stock on the Purchase Date, or (iii) provide for payroll deductions or other contributions by participants in excess of the maximum dollar amount set forth in Section 5.1. The Committee has the authority to suspend or limit participation in the portion of the Plan not subject to Code Section 423 (including any or all sub-plans thereunder) for any reason, including administrative or economic reasons. The approval of the stockholders of the Company is not required before the adoption, amendment, or termination of any sub-plan designed to be outside the scope of Code Section 423, unless required by the laws of the foreign jurisdiction in which eligible employees participating in the sub-plan are located or by any other applicable laws, rules, or regulations, including, without limitation, the rules or standards of any stock exchange on which shares of Stock are listed.
9.2 Rules Governing the Administration of the Committee . The Committee will hold its meetings at such times and places as it deems advisable and may hold telephonic meetings. A majority of its members will constitute a quorum. All determinations of the Committee will be made by a majority of its members. Any decision, determination, or action may be made or taken without a meeting by written consent of all members of the Committee.
9.3 Indemnification . Members of the Committee, and any officer or employee of the Company acting at the direction, or on behalf, of the Committee will not be personally liable for any action or determination taken or made in good faith with respect to the Plan and will, to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination.
9.4 Recordkeeper . The Recordkeeper will act as recordkeeper under the Plan, and will perform such duties as are set forth in the Plan and in any agreement between the Company and the Recordkeeper. The Recordkeeper will establish and maintain for each Participant a brokerage account.
9.5 Administrative Costs . The costs and expenses incurred in the administration of the Plan and maintenance of Accounts will be paid by the Company, including, but not limited to, annual fees of the Recordkeeper and any brokerage fees and commissions for the purchase of Stock upon reinvestment of dividends and distributions. The foregoing notwithstanding, the Recordkeeper may impose or pass through to the participants a reasonable fee for the withdrawal of Stock in the form of stock certificates and reasonable fees for other services unrelated to the purchase of Stock under the Plan, to the extent approved in writing by the Company and communicated to participants. Under no circumstance will the Company pay any brokerage fees or commissions for the sale of Stock acquired under the Plan by a participant.
9.6 Action by the Board . Notwithstanding anything to the contrary contained in the Plan, the Board will have and may exercise all the authority granted to the Committee under the Plan. However, any such actions by the Board will be subject to the applicable rules of the New York Stock Exchange or any other securities exchange or inter-dealer quotation system on which the Stock is listed or quoted.
10. MISCELLANEOUS
10.1 Designation of Beneficiary . A participant may elect to designate a beneficiary who is to receive any shares and cash from the participants Account under the Plan in the event of such participants death by giving instructions to the Recordkeeper. The participant may change the participants beneficiary designation at any time. In the event a participant dies without having elected a beneficiary, any shares or cash to be distributed on the participants death will be delivered to the participants estate.
10.2 Transferability . Neither payroll deductions credited to a participants Account nor any rights with regard to the exercise of an option or to receive Stock under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way by the participant other than by will or the laws of descent and distribution or as provided in Section 10.1. Any such attempted assignment, transfer, pledge, or other disposition will be without effect.
10.3 Withholding . The Company, any Participating Company, and any Designated Affiliate is authorized to withhold from any payment to be made to a participant any taxes or other withholding amounts due in connection with any transaction under the Plan, including any disposition of shares acquired under the Plan, and a participants enrollment in the Plan will be deemed to constitute the participants consent to such withholding. At the time of a participants exercise of an option or disposition of shares acquired under the Plan, the Company may require the participant to make other arrangements to meet tax withholding obligations as a condition to exercise of rights or distribution of shares or cash from the participants Account. In addition, a Participant may be required to advise the Company of sales and other dispositions of Stock acquired under the Plan in order to permit the Company to comply with tax laws and to claim any tax deductions to which the Company may be entitled with respect to the Plan.
Without limiting the generality of the foregoing, the Committee may permit or require a participant to satisfy, in whole or in part, any withholding liability by any of the following methods or any combination of the following methods: (A) delivering shares of Stock (that are not subject to any pledge or other security interest) owned by the participant having a Fair Market Value equal to such withholding liability; (B) having the Company withhold from the number of shares of Stock otherwise issuable or deliverable pursuant to the exercise of an option a number of shares with a Fair Market Value equal to such withholding liability, except that with respect to shares withheld pursuant to this clause (B), the number of such shares may not have a Fair Market Value greater than the minimum required statutory withholding liability; (C) requiring the participant, as a condition precedent to transfer of the shares, to make a payment in an amount equal to the amount of the withholdings or reductions; or (D) such other method or combination of methods as the Committee deems appropriate, in its sole discretion.
The Committee will have the right, in its sole discretion, to require, as a condition precedent to the transfer of any shares under this Plan, that the transferee execute a power of attorney or such other agreement or document as the Committee deems necessary or appropriate to facilitate, directly or indirectly, the withholding of taxes with respect to any transaction arising under or in connection with this Plan.
10.4 Use of Funds . All payroll deductions received or held by the Company under this Plan may be used by the Company for any corporate purpose, and the Company is not obligated to segregate such payroll deductions.
10.5 Reports . Statements of Account will be given to each participant at least annually, which statements will set forth the amounts of payroll deductions, the Purchase Price, the number of shares purchased, any remaining cash balance, and other information deemed relevant by the Committee.
10.6 Adjustment Upon Changes in Capitalization .
(a) Changes in Capitalization . The Committee will proportionately adjust the Reserves and the price per share and the number of shares of Stock covered by each option under the Plan that has not yet been exercised for any increase or decrease in the number of issued shares of Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Stock, or other extraordinary corporate event that affects the Stock in order to prevent dilution or enlargement of the rights of participants. The determination of the Committee with respect to any such adjustment will be final, binding, and conclusive.
(b) Dissolution or Liquidation . In the event of the proposed dissolution or liquidation of the Company, the Offering Period will terminate immediately before the consummation of such proposed action, unless otherwise provided by the Committee.
(c) Asset Sale or Merger . In the event of a proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, the Committee will shorten the Offering Period then in progress by setting a new Purchase Date (the New Purchase Date ). The New Purchase Date will be before the date of the Companys proposed asset sale or merger. The Committee will notify each participant in writing, at least ten business days before the New Purchase Date, that the Purchase Date for the participants purchase has been changed to the New Purchase Date and that the participants option will be exercised automatically on the New Purchase Date, unless before such date the participant has withdrawn the amount credited to the participants Account upon withdrawal from the Plan pursuant to Section 7.1 or such amount has been distributed to the participant upon termination of employment pursuant to Section 7.2.
10.7 Amendment and Termination . The Board of Directors has the complete power and authority to terminate the Plan at any time. Any amendment to the Plan to increase the maximum number of shares of Stock that may be issued under any Offering (except pursuant to Section 10.6), to amend the requirements as to the class of employees eligible to purchase Stock under the Plan (except for designations of Participating Companies and Designated Affiliates pursuant to Sections 2.8, 2.12 and 9.1), or to change the granting corporation or the Stock available for purchase under the Plan may be made only by the Board of Directors with the approval of the Companys stockholders within 12 months before or after the date such amendment is adopted by the Board. Any other amendment to the Plan may be made by either the Board of Directors or the Committee, unless otherwise required by any applicable law, rule, or regulation, including, without limitation, the rules and regulations of the New York Stock Exchange. No termination, modification, or amendment of the Plan may, without the consent of an employee then having an option under the Plan to purchase Stock, adversely affect the rights of such employee under such option.
10.8 No Right to Employment . The Plan does not, directly or indirectly, create any right for the benefit of any employee or class of employees to purchase any shares of Stock under the Plan except as expressly provided, or create in any employee or class of employees any right with respect to continuation of employment, and the existence of this Plan will not be deemed to interfere in any way with an employers right to terminate, or otherwise modify, an employees employment at any time.
10.9 Notices . All notices or other communications by a participant to the Company or to the Recordkeeper will be deemed to have been duly given when received in the manner and form specified by the Company or the Recordkeeper, whichever is applicable, at the location, or by the person, designated by the Company, or Recordkeeper, for the receipt thereof.
10.10 Elections . All elections and notices made by a participant to the Recordkeeper may be made telephonically or electronically in accordance with procedures established by the Committee and the Recordkeeper.
10.11 Conditions Upon Issuance of Shares . The Company is not obligated to issue shares of Stock with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant thereto complies with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, and the requirements of any stock exchange or automated quotation system upon which the shares may then be listed or quoted.
10.12 Effect of Plan . The provisions of the Plan are binding upon, and will inure to the benefit of, all successors of each participant, including, without limitation, such participants estate and the executors, administrators, or trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy, or representative of creditors of such participant.
10.13 Effective Date . The Plan will become effective as of October 1, 2017, subject to approval by the holders of the majority of the common stock present and represented at a special or annual meeting of the Companys stockholders held on or before October 1, 2017. If the Plan is not so approved, the Plan will not become effective.
10.14 Governing Law . The law of the state of Delaware applicable to contracts made and performed wholly within the state of Delaware will govern all matters relating to this Plan except to the extent it is superseded by the laws of the United States.
* * * * *
|
+1 212.836.8000 Fax 212.836.8689 www.apks.com |
September 6, 2017
Spirit AeroSystems Holdings, Inc.
3801 South Oliver Street
Wichita, Kansas 67210
Re: Registration Statement on Form S-8
Spirit AeroSystems Holdings, Inc.
Spirit AeroSystems Employee Stock Purchase Plan
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement on Form S-8 (the Registration Statement ), filed with the Securities and Exchange Commission (the Commission ) under the Securities Act of 1933, as amended (the Securities Act ), for the registration of 1,000,000 shares of class A common stock, par value $0.01 per share (the Shares ), of Spirit AeroSystems Holdings, Inc., a Delaware corporation (the Company ). The Shares are to be issued pursuant to the Spirit AeroSystems Employee Stock Purchase Plan (the Plan ).
We have acted as counsel for the Company in connection with the proposed issuance of the Shares. In rendering the opinion set forth below, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. In giving this opinion, we are assuming the authenticity of all instruments presented to us as originals, the conformity with originals of all instruments presented to us as copies and the genuineness of all signatures.
The law covered by this opinion is limited to the General Corporation Law of the State of Delaware.
Based on and subject to the foregoing, it is our opinion that, when the Registration Statement has been filed with the Commission and the Shares have been issued and distributed to the participants under the Plan in accordance with the Plan, the Shares will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving this opinion, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
|
Very truly yours, |
|
|
|
/s/ Arnold & Porter Kaye Scholer LLP |
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Employee Stock Purchase Plan of Spirit AeroSystems Holdings, Inc. of our reports dated February 10, 2017, with respect to the consolidated financial statements of Spirit AeroSystems Holdings, Inc. and the effectiveness of internal control over financial reporting of Spirit AeroSystems Holdings, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2016, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Wichita, Kansas
September 6, 2017