EXHIBIT 10.38


 


Amended and Restated Employment Agreement of Lee S. Powell


 


This Employment Agreement (the “Agreement”) is effective as of November 20,
2008 (the “Effective Date”), by and between SPX Corporation (the “Company”) and
Leslie (“Lee”) S. Powell (the “Executive”).


 


WHEREAS, the Company and the Executive
previously entered into an employment agreement, effective as of January 31,
2008, as amended (the “Previous Employment Agreement”);


 


WHEREAS, the Company desires to employ the Executive as its Segment
President, Industrial Products and Services;


 


WHEREAS, the Company and the Executive desire to amend and restate the
Previous Employment Agreement as set forth below; and


 


WHEREAS, the Company and the Executive have reached agreement
concerning the terms and conditions of his continued employment and wish to
formalize that agreement.


 


NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions stated in this Agreement, the Company and the Executive hereby agree
as follows:


 


1.                                       Employment. 
The Company employs the Executive and the Executive hereby accepts
continued employment with the Company and appointment as its Segment President,
Industrial Products and Services.  During
the Term (as hereinafter defined), the Executive will have the title, status
and duties of the Segment President, Industrial Products and Services  and will report directly to the Company’s
Chief Executive Officer or other senior executive officer.  The Executive’s principal business office
shall be located in Charlotte, North Carolina, and Executive’s principal family
residence shall be located within 50 miles of the Company’s principal business
office for the duration of the Term.


 


2.                                       Term. 
The term of employment under this Agreement (“Term”) will commence on
the Effective Date, and will continue thereafter until December 31, 2010;
provided, however, that this Agreement shall remain in effect and the Term
shall be extended from year to year thereafter unless, not less than one
hundred eighty (180) days prior to December 31, 2010, or any subsequent December 31,
either the Executive or the Company delivers to the other written notice of his
or its intention not to continue this Agreement in effect, in which case this
Agreement shall terminate as of December 31 of the year in which such
notice is given; and provided further that, if a Change in Control (as defined
below) shall have occurred during the Term, this Agreement shall continue in
effect and the Term shall be extended until at least the second anniversary of
such Change in Control.


 


3.                                       Duties. 
During the Term:


 













 


(a)                                  The
Executive will perform duties assigned by the Company’s Chief Executive Officer
or the Company’s Board of Directors (the “Board”), from time to time; provided
that the Executive shall not be assigned tasks inconsistent with those of the
Segment President, Industrial Products and Services.


 


(b)                                 The
Executive will devote his full time and best efforts, talents, knowledge and
experience to serving as the Company’s Segment President, Industrial Products
and Services.  However, the Executive may
devote reasonable time to activities such as supervision of personal
investments and activities involving professional, charitable, educational,
religious and similar types of activities, speaking engagements and membership
on other boards of directors, provided such activities do not interfere in any
material way with the business of the Company; provided that, the Executive
cannot serve on the board of directors of more than one publicly-traded company
without the Board’s written consent.  The
time involved in such activities shall not be treated as vacation time.  The Executive shall be entitled to keep any
amounts paid to him in connection with such activities (e.g., director fees and honoraria).


 


(c)                                  The
Executive will perform his duties diligently and competently and shall act in
conformity with the Company’s written and oral policies and within the limits,
budgets and business plans set by the Company. 
The Executive will at all times during the Term strictly adhere to and
obey all of the rules, regulations and policies in effect from time to time
relating to the conduct of executives of the Company.  Except as provided in (b) above, the
Executive shall not engage in consulting work or any trade or business for his
own account.  The Executive shall not
engage in consulting work or any trade or business on behalf of any other
person, firm or company that competes, conflicts or interferes with the
performance of his duties hereunder in any way.


 


4.                                       Compensation and Benefits.  During the Term, the Company shall provide to
the Executive, and the Executive shall accept from the Company as full
compensation for the Executive’s services hereunder, compensation and benefits
as follows:


 


                                                (a)                                  Base
Salary.  The Company shall pay the
Executive at an annual base salary (“Base Salary”) of four hundred thousand
dollars ($400,000).  The Board, or such
committee of the Board as is responsible for setting the compensation of
officers, shall review the Executive’s performance and Base Salary annually in January of
each year, and determine whether to adjust the Executive’s Base Salary on a
prospective basis.  Such adjusted annual
salary then shall become the Executive’s “Base Salary” for purposes of this
Agreement.  The Executive’s annual Base
Salary shall not be reduced after any increase, without the Executive’s written
consent.  The Company shall pay the
Executive’s Base Salary according to payroll practices in effect for all
officers of the Company.


 


(b)                                 Incentive
Compensation.  The Executive shall be
eligible to participate in any annual performance bonus plans, long-term
incentive plans, and/or equity-based compensation plans established or
maintained by the Company for its officers, including, but not limited to the
SPX Corporation Stock Compensation Plan, all as the Board (or appropriate Board
committee) may determine from time to time in its discretion.  For the 


 


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2008 bonus plan year, the Executive shall be
eligible for a target bonus under the Company’s bonus plan equal to eighty
percent (80%) of his Base Salary provided that all performance goals set by the
Company are met.  The Board (or
appropriate Board committee) will determine and communicate to the Executive
his annual bonus plan participation and the applicable performance goals for
subsequent bonus plan years, no later than March 31 of such bonus plan
year.  The Company will pay the Executive’s
annual performance bonus at the same time as annual performance bonus payments
for such year (if any) are made to other participants with respect to such
fiscal year, and in all events within the two and one-half (21⁄2) months
following the end of the calendar year in which the bonus is earned.  Annual performance bonuses are intended to
qualify for the short-term deferral exception to Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).


 


(c)                                  Executive
Benefit Plans.  The Executive will be
eligible to participate in any executive benefit plans offered by the Company
including, without limitation, medical, dental, short-term and long-term
disability, life, pension, profit sharing and nonqualified deferred
compensation arrangements, as the Board may determine in its discretion.  The Company reserves the right to modify,
suspend or discontinue any and all of the plans, practices, policies and
programs at any time without recourse by the Executive, so long as the Company
takes such action generally with respect to other similarly situated officers.


 


(d)                                 Business
Expenses.  The Company shall
reimburse the Executive for all reasonable and necessary business expenses
incurred in the performance of services with the Company, according to the
Company’s policies and upon Executive’s presentation of an itemized written
statement and such verification as the Company may require, provided that such
expenses shall be reimbursed no later than December 31 of the year
following the year in which the expenses were incurred.


 


(e)                                  Perquisites.  The Company will provide the Executive with
all perquisites it provides to other similarly situated officers.  Such perquisites shall not be less than those
provided to the Executive on the Effective Date.  The Company will also reimburse the Executive
for annual income tax return preparation and financial planning up to $20,000
per year.  The Company will make such
reimbursements in accordance with the Company’s reimbursement practices, and in
all events no later than December 31 of the year following the year in
which the expense was incurred.


 


(f)                                    Vacation.  The Executive will be entitled to vacation in
accordance with the Company’s vacation policy for officers, but in no event
less than 5 weeks per calendar year.  The
maximum vacation accrual allowed from year to year and at any given time will
equal Executive’s annual entitlement. 
Once the maximum accrual is reached, Executive will no longer accrue
vacation until the unused amount accrued is below the maximum level allowed.


 


(g)                                 Retiree Medical.  The Executive shall be entitled to receive
retiree medical benefits during his lifetime in accordance with the eligibility
requirements and plan 


 


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offerings for access to retiree medical
benefits provided generally to full-time employees of the Company.  The Executive may cover his spouse or
dependents eligible at the time of retirement. 
The cost of such benefits for the Executive, his spouse and eligible
dependents, will be 100% of the premiums and shall be reimbursed by the Company
on an annual basis up to the date the Executive reaches Medicare eligibility
due to age, at which point such reimbursement shall cease.  Such reimbursement shall be made in
accordance with the Company’s reimbursement practices, and in all events no
later than December 31 of the year following the year in which the
premiums were incurred, and in accordance with the other requirements of Code Section 409A
and Treasury Regulation §1.409A-3(i)(1)(iv) (or any similar or successor
provisions).  Depending on the plan, all
or a portion of the reimbursement may be taxable.  Such benefits shall include prescription drug
coverage, but not dental or vision benefits unless included in the medical
plan.  Upon reaching Medicare eligibility
due to age, Medicare shall become the primary payor of medical/prescription
benefits for the Executive, his spouse or eligible dependents as applicable,
and the reimbursement of premiums for such coverage by the Company shall
cease.  The Company reserves the right to
modify, suspend or discontinue any and all retiree medical plans, practices,
policies and programs at any time without recourse by the Executive, so long as
the Company takes such action generally with respect to other similarly
situated officers; provided that, if the Company terminates retiree access to
medical and/or prescription benefits generally for retirees, the Executive
shall be entitled to an annual reimbursement from the Company upon proof of
continued coverage for comparable medical and/or prescription coverage under an
individual policy or other group policy, subject to a maximum total
reimbursement of one and one-half times the applicable premium of the plan in
effect at the time retiree access is terminated at the applicable coverage
level, and subject to maximum annual inflation adjustment thereafter of five
percent (5%).  Upon the death of the
Executive, a surviving spouse will continue eligibility and reimbursement as
described above.  Surviving dependent
children will not receive premium reimbursement beyond the COBRA continuation
period.  For all other COBRA qualifying
events other than the death of the Executive, reimbursement will cease upon
commencement of the COBRA continuation period.


 


5.                                       Payments on Termination of Employment.


 


(a)                                  Definition
of Termination of Employment.  For
purposes of this Agreement, the Executive’s employment with the Company shall
be deemed to be terminated when the Executive has a “Separation from Service”
within the meaning of Code Section 409A, and references to termination of
employment shall be deemed to refer to a Separation from Service.


 


(b)                                 Termination
of Employment for any Reason.  The
following payments will be made upon the Executive’s termination of employment
for any reason:


 


(i)                                     Earned
but unpaid Base Salary through the date of termination;


 


(ii)                                  Any
annual incentive plan bonus, for which the performance measurement period has
ended, but which is unpaid at the time of termination;


 


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(iii)                               Any
accrued but unpaid vacation;


 


(iv)                              Any
amounts payable under any of the Company’s benefit plans in accordance with the
terms of those plans, except as may be required under Code Section 401(a)(13);
and


 


(v)                                 Unreimbursed
business expenses incurred by the Executive on the Company’s behalf.


 


(c)                                  Termination
of Employment for Death or Disability. 
In addition to the amounts determined under (a) above, if the
Executive’s termination of employment occurs by reason of death or disability,
the Executive (or his estate) will receive a pro rata portion of any bonus
payable under the Company’s annual incentive plan for the year in which such
termination occurs determined based on the highest of (i) the actual
annual bonus paid for the bonus plan year immediately preceding such
termination, or (ii) the target bonus for the bonus plan year in which
such termination occurs.  The Executive
will be deemed to be disabled upon the earlier of (x) the end of a six (6) consecutive
month period during which, by reason of physical or mental injury or disease,
the Executive has been unable to perform substantially all of his usual and
customary duties under this Agreement or (y) the date that a reputable
physician selected by the Company’s Chief Executive Officer, determines in
writing that the Executive will, by reason of physical or mental injury or
disease, be unable to perform substantially all of the Executive’s usual and
customary duties under this Agreement for a period of at least six (6) consecutive
months.  If any question arises as to
whether the Executive is disabled, upon request therefore by the Chief
Executive Officer, the Executive shall submit to medical examination for the
purpose of determining the existence, nature and extent of any such
disability.  In accordance with Section 11,
the Chief Executive Officer shall promptly give the Executive written notice of
any such determination of the Executive’s disability and of any decision of the
Chief Executive Officer to terminate the Executive’s employment by reason
thereof.  In the event of disability,
until the date of termination, the amount of Base Salary payable to the
Executive under Section 4 hereof shall be reduced dollar-for-dollar by the
amount of disability benefits paid to the Executive in accordance with any
disability policy or program of the Corporation.


 


(d)                                 Termination
by the Company Without Cause, or Voluntary Termination by the Executive for
Good Reason.  If the Company
terminates the Executive’s employment other than for Cause or death or
disability, or the Executive voluntarily terminates his employment for Good
Reason, in addition to the benefits payable under (b), the Company will pay the
following amounts and provide the following severance benefits:


 


(i)                                     The
Executive’s Base Salary through the one-year anniversary of the employment
termination and annual incentive bonus, which will be determined as the highest
of (A) the actual incentive bonus paid for the bonus plan year immediately
preceding such termination, or (B) the average annual bonus paid to the
Executive for the three bonus plan years preceding the year in which such
termination occurs (excluding any years of partial, or no, bonus plan 


 


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participation), plus (C) the amount, if
any, to which the bonus that would have been paid to the Executive for the
bonus plan year in which such termination occurs, based on the performance
level actually attained, exceeds the amount payable under the highest of (A) or
(B).


 


(ii)                                  Continued
coverage under the Company’s medical, dental, vision, key manager life
insurance and pension through the one-year anniversary of the employment
termination, at the same cost to the Executive as in effect on the date of the
Executive’s termination, provided that to the extent such continued coverage
extends beyond the COBRA continuation period, such coverage will be provided in
accordance with the requirements of Code Section 409A and Treasury
Regulation §1.409A-3(i)(1)(iv) (or any similar or successor
provisions).  The period through the end
of the Employment Term shall continue to count for purposes of determining the
Executive’s age and service with the Company with respect to eligibility,
vesting and the amount of benefits under the Company’s benefit plans to the
maximum extent permitted by applicable law. 
If the Company determines that the Executive cannot participate in any
benefit plan because he is not actively performing services for the Company,
the Company will provide such benefits under (A) an alternate arrangement,
such as through the purchase of an individual insurance policy that provides
similar benefits, provided that such coverage will be provided in accordance
with the requirements of Code Section 409A and Treasury Regulation
§1.409A-3(i)(1)(iv) (or any similar or successor provisions) or (B) if
applicable, through a nonqualified pension or profit sharing plan, provided
that such payments shall be made no later than December 31 of the calendar
year following the calendar year in which the Executive’s termination of
employment occurs.  To the extent that
the Executive’s compensation is necessary for determining the amount of any
such continued coverage or benefits, such compensation (Base Salary and annual
incentive bonus) through the one-year anniversary of the employment termination
shall be at the highest rate in effect during the 12-month period immediately
preceding the Executive’s termination of employment.


 


(iii)                               Executive
perquisites on the same basis on which the Executive was receiving such
perquisites prior to his employment termination, including: (A) reimbursement
for club dues through the one year anniversary of the employment termination;
and (B) reimbursement of expenses relating to financial planning services,
tax return preparation and annual physicals incurred on or before December 31
of the calendar year that includes the first anniversary of the Executive’s
employment termination; provided that reimbursement of such perquisites shall
be made to the Executive in accordance with the Company’s reimbursement
practices, and in all events no later than December 31 of the calendar
year that includes the third anniversary of the termination of the Executive’s
employment.  The Company will bear the
cost of such perquisites, at the same level in effect immediately prior to the
Executive’s employment termination. 
Perquisites otherwise receivable by the Executive pursuant to this Section shall
be reduced to the extent comparable perquisites are actually received by or
made available to the Executive without cost during the period following 


 


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the Executive’s employment
termination covered by this Section.  The
Executive shall report to the Company any such perquisites actually received by
or made available to the Executive.


 


Upon a “Change
of Control” (as defined in the Executive’s Change of Control Agreement dated November 20,
2008), any outstanding stock options, restricted stock or other equity-based
compensation awards that would have vested during the period through the one
year anniversary of the Executive’s employment termination shall immediately
vest upon such termination date, and any Company stock options shall be
immediately exercisable at any time prior to the earlier of (A) one (1) year,
or (B) the stock option expiration or other termination date, subject to
applicable insider trading policies and regulations.  Prior to a Change of Control, any outstanding
stock options, restricted stock or other equity-based compensation awards shall
immediately vest upon such termination date, and any such stock options shall
be immediately exercisable at any time prior to the earlier of (A) two (2) years,
or (B) the stock option expiration or other termination date.  Notwithstanding the foregoing, any restricted
stock or other equity-based compensation awards that were intended to satisfy
the requirements for performance-based compensation under Code Section 162(m),
and would become vested only upon the attainment of specified performance
goals, shall vest only if (and at the time that) such performance goals are
achieved.


 


(v)                                 Outplacement
services, as elected by the Executive (and with a firm selected by the
Executive), not to exceed $35,000 in total. 
Such outplacement services must be incurred by the Executive no later
than the end of the calendar year that includes the second anniversary of the
termination of the Executive’s employment. 
If applicable, reimbursement of such expenses shall be made to the
Executive no later than the end of the calendar year that includes the third
anniversary of the termination of the Executive’s employment.


 


(e)                                  Good
Reason.  For purposes of this
Agreement, “Good Reason” shall mean the occurrence of any of the following
without the Executive’s consent:  (i) a
material diminution in the Executive’s base compensation; (ii) a material
diminution in the Executive’s authority, duties, or responsibilities; (iii) a
material diminution in the budget over which the Executive retains authority; (iv) a
material change in the geographic location at which the Executive’s must
perform the services; or (v) any other action or inaction that constitutes
a material breach by the Company of this Agreement.  The Executive’s must provide notice to the
Company of the existence of the condition described in above within a period
not to exceed ninety (90) days of the initial existence of the condition, and
the Company will have a period of at least thirty (30) days following the
notice during which it may remedy the condition.  Any termination for Good Reason must occur
within two years following the initial existence of one or more of the
foregoing conditions.


 


(f)                                    Cause.  For purposes of this Agreement, “Cause” shall
mean:  (i) the Executive’s willful
and continued failure to satisfactorily perform his duties as an 


 


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executive of the Company (other than any such
failure resulting from incapacity due to physical or mental illness) after a
written demand for performance is delivered to the Executive, which demand
specifically identifies the manner in which the Executive has not
satisfactorily performed his duties, and which gives the Executive at least 30
days to cure such alleged deficiencies, (ii) the Executive’s willful
misconduct or dishonesty, which is demonstrably and materially injurious to the
Company, monetarily, reputationally, or otherwise, (iii) the Executive’s
engaging in egregious misconduct involving serious moral turpitude to the
extent that his credibility and reputation no longer conforms to the standard
of officers of the Company, (iv) the Executive’s refusal or failure to
substantially comply with the Company’s human resources rules, policies,
directions and/or restrictions relating to harassment and/or discrimination, or
to substantially comply with the Company’s compliance or risk management rules,
policies, directions and/or restrictions (including, without limitation, the
Company’s Code of Business Conduct); (v) the Executive’s loss of any
license or registration that is necessary for the Executive to perform his or
her duties, or commits any act that could result in the legal disqualification
of the Executive from being employed by the Company or a subsidiary; (vi) the
Executive’s failure to cooperate with the Company or a subsidiary in any
internal investigation or administrative, regulatory or judicial
proceeding.  The Executive’s employment
shall be deemed to have terminated for Cause if, after the Executive’s
employment has terminated, facts and circumstances are discovered that would
have justified a termination for Cause.


 


(g)                                 Non-Renewal.  If the Company gives written notice to the
Executive of its intention not to continue this Agreement in effect, in
accordance with Section 2, and the Executive remains employed until the December 31
termination of the Agreement (and a Change in Control has not occurred that
would extend the Agreement), the Executive may deliver his written resignation
to the Company effective December 31, and the Company will continue the
Executive’s Base Salary for six (6) months following the December 31
effective date of the Executive’s resignation.


 


(h)                                 Timing
of Payments.  Subject to Sections 5(i) and
5(j) and except as provided otherwise in this Agreement, all payments
described in Section 5 above shall be made in a lump sum cash payment as
soon as administratively practicable (but in no event more than thirty (30)
days) following the Executive’s termination of employment.  If the total amount of annual bonus is not
determinable on that date, the Company shall pay the amount of bonus that is
determinable and the remainder shall be paid in a lump sum cash payment at the
time such bonuses are paid generally and in all events within the two and
one-half (21⁄2) months following the end of the calendar year in which the bonus
is earned (subject to Section 5(i)).


 


(i)                                     Six
(6) Month Delay.  If, at the
time the Executive becomes entitled to a termination payment under this Section 5,
the Executive is a “specified employee” (as defined under Code Section 409A),
then, notwithstanding any other provision in this Agreement to the contrary,
the following provisions shall apply.


 


(i)                                     No
such termination payment considered deferred compensation under Code Section 409A
and not subject to an exception or exemption 


 


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thereunder shall be paid to the Executive
until the date that is six (6) months after the Executive’s termination
or, if earlier, the date of the Executive’s death (the “Six Month Delay Rule”).  Any such termination payment that would
otherwise have been paid to the Executive during this six-month period (the “Six
Month Delay”) shall instead be aggregated and paid to the Executive no later
than ten (10) days following the date that is six (6) months after
the Executive’s termination (together with interest at the interest credit rate
provided in the SPX Corporation Individual Account Retirement Plan).  Any termination payment to which the
Executive is entitled to be paid under this Section 5 after the date that
is six (6) months after the Executive’s termination shall be paid to the
Executive in accordance with the applicable terms of Section 5.


 


(ii)                                  During
the Six-Month Delay, the Company will pay to the Executive the applicable
payments set forth in this Section 5, to the extent any of the following
exceptions to the Six-Month Delay Rule apply:


 


(A)                              the
short-term deferral rule of Code Section 409A and Treasury Regulation
§1.409A-1(b)(4) (or any similar or successor provisions) (including with
the treatment of each payment as one of a series of separate payments for purposes
of Code Section 409A and Treasury Regulation §1.409A-2(b)(2)(iii)) (or any
similar or successor provisions),


 


(B)                                payments
permitted under the separation pay exception of Code Section 409A and
Treasury Regulation §1.409A-1(b)(9)(iii) (or any similar or successor
provisions), and


 


(C)                                payments
permitted under the limited payments exception of Code Section 409A and
Treasury Regulation §1.409A-1(b)(9)(v)(D) (or any similar or successor
provisions),


 


provided that the amount paid under this
paragraph will count toward, and will not be in addition to, the total payment
amount required to be made to the Executive by the Company under this Section 5
on account of the separation from service and any applicable Company benefit
plan.


 


(j)                                     Release.  The Company shall deliver to the Executive a
release in favor of the Company that is acceptable to the Company (the “Release”)
as soon as administratively feasible following the Executive’s termination of
employment.  Notwithstanding anything in
this Agreement to the contrary, no payments pursuant to Section 5(c) or
Section 5(d) shall be made prior to the date that both (i) the
Executive has delivered an original, signed Release to the Company and (ii) the
revocability period (if any) has elapsed; provided, however, that any payments
that would otherwise have been made prior to such date but for the fact that
the Executive had not yet delivered an original, signed Release (or the
revocability period had not yet elapsed) shall be made as soon as
administratively practicable but not later than the seventy-fourth (74th) day 


 


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following the Executive’s
termination of employment.  If the
Executive does not deliver an original, signed Release to the Company within
ten (10) business days (or longer if required by applicable law) after
receipt of the same from the Company, (i) Executive’s rights shall be
limited to those made available to Executive under Section 5(b) above,
and (ii) the Company shall have no obligation to pay or provide to
Executive any amount or benefits described in Section 5(c) or Section 5(d),
or any other monies on account of the termination of Executive’s employment.


 


6.                                       Recapture of Certain Incentive Compensation.  If the Company is
required to prepare an accounting restatement due to the material noncompliance
of the Company, during the Term, as a result of misconduct, with any financial
reporting requirement under the securities laws, the Executive shall reimburse
the Company, promptly upon notice and demand, for (a) any bonus or other
incentive-based or equity-based compensation received from the Company during
the twelve (12-) month period following the first public issuance or filing
with the Securities and Exchange Commission, whichever occurs first, of the
financial document embodying such financial reporting requirement; and (b) any
profits realized from the sale of securities of the Company during that twelve
(12) month period.


 


7.                                       Assignment; Successors.  This Agreement shall inure to the benefit of
and be binding upon the Company and its successors.  The Company may not assign this Agreement
without the Executive’s written consent, except that the Company’s obligations
under this Agreement shall be the binding legal obligations of any successor to
the Company by sale, and in the event of any transaction that results in the
transfer of substantially all of the assets or business of the Company, the
Company will use its best efforts to cause the transferee to assume the
obligations of the Company under this Agreement.  The Executive may not assign this Agreement
during his life.  Upon the Executive’s
death, this Agreement will inure to the benefit of the Executive’s heirs,
legatees and legal representatives of the Executive’s estate.


 


8.                                       Interpretation.  The laws of the State of Delaware shall
govern the validity, interpretation, construction and performance of this
Agreement, without regard to the conflict of laws principles thereof.


 


9.                                       Withholding.  The Company may withhold from any payment
that it is required to make under this Agreement amounts sufficient to satisfy
applicable withholding requirements under any federal, state or local law.


 


10.                                 Amendment or Termination.  This Agreement may be amended at any time by
written agreement between the Company and the Executive.


 


11.                                 Notices. 
Notices given pursuant to this Agreement shall be in writing and shall
be deemed received when personally delivered, or on the date of written
confirmation of receipt by (i) overnight carrier, (ii) telecopy, (iii) registered
or certified mail, return receipt requested, addressee only, postage prepaid,
or (iv) such other method of delivery that provides a written confirmation
of delivery.  Notice to the Company shall
be directed to:


 


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SPX Corporation


13515 Ballantyne Corporate Place


Charlotte, NC 28277


Attention: General Counsel


 


The Company
may change the person and/or address to which the Executive must give notice
under this Section by giving the Executive written notice of such change,
in accordance with the procedures described above.  Notices to or with respect to the Executive
will be directed to the Executive, or to the Executive’s executors, personal
representatives or distributees, if the Executive is deceased, or the assignees
of the Executive, at the Executive’s home address on the records of the
Company.


 


12.                                 Severability.  If any provisions(s) of this Agreement
shall be found invalid or unenforceable by a court of competent jurisdiction,
in whole or in part, then it is the parties’ mutual desire that such court
modify such provision(s) to the extent and in the manner necessary to
render the same valid and enforceable, and this Agreement shall be construed
and enforced to the maximum extent permitted by law, as if such provision(s) had
been originally incorporated herein as so modified or restricted, or as if such
provision(s) had not been originally incorporated herein, as the case may
be.


 


13.                                 Entire Agreement.  This Agreement sets forth the entire
agreement and understanding between the Company and the Executive and
supersedes all prior agreements and understandings, written or oral, relating
to the subject matter hereof; provided, however, that: (i) the Executive’s
Change of Control Agreement dated November 20, 2008 shall remain in full
force and effect, and payments and benefits provided thereunder shall replace
those provided in this Agreement to the extent that such payments or benefits
would otherwise clearly be duplicative; and (ii) the Executive’s
non-compete, non-solicitation, confidentiality or similar restrictive covenants
shall remain in full force and effect.


 


14.                                 Consultation With Counsel.  The Executive acknowledges that he has had a
full and complete opportunity to consult with counsel of the Executive’s own
choosing concerning the terms, enforceability and implications of this
Agreement, and the Company has made no representations or warranties to the
Executive concerning the terms, enforceability or implications of this
Agreement other than as are reflected in this Agreement.


 


15.                                 No Waiver. 
No failure or delay by the Company or the Executive in enforcing or
exercising any right or remedy hereunder shall operate as a waiver
thereof.  No modification, amendment or waiver
of this Agreement or consent to any departure by the Executive from any of the
terms or conditions thereof, shall be effective unless in writing and signed by
the Chairman of the Company’s Board.  Any
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.


 


16.                                 Effect on Other Obligations.  Payments and benefits herein provided to be
paid to the Executive by the Company shall be made without regard to and in
addition to any other payments or benefits required to be paid the Executive at
any time hereafter under the terms of any other agreement between the Executive
and the Company or under any other policy of the Company relating to
compensation, or retirement or other benefits. 
Except as otherwise 


 


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expressly provided herein, payments or benefits provided the Executive
hereunder shall be reduced by any amount the Executive may earn or receive from
employment with another employer or from any another source.


 


17.                                 Survival. 
All Sections of this Agreement survive beyond the Term except as
otherwise specifically stated.


 


18.                                 Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning thereof.


 


29.                                 Counterparts.  The parties may execute this Agreement in one
or more counterparts, all of which together shall constitute but one Agreement.


 


20.                                 409A Compliance.  To the extent any provision of this Agreement
or action by the Company would subject the Executive to liability for interest
or additional taxes under Code Section 409A, it will be deemed null and
void, to the extent permitted by law and deemed advisable by the Company.  It is intended that this Agreement will
comply with Code Section 409A and the interpretive guidance thereunder,
including the exceptions for short-term deferrals, separation pay arrangements,
reimbursements, and in-kind distributions, and this Agreement shall be
administered accordingly, and interpreted and construed on a basis consistent
with such intent.  Each payment under Section 5
of this Agreement or any Company benefit plan is intended to be treated as one
of a series of separate payments for purposes of Code Section 409A and
Treasury Regulation §1.409A-2(b)(2)(iii) (or any similar or successor provisions).  This Agreement may be amended to the extent
necessary (including retroactively) by the Company in order to preserve
compliance with Code Section 409A. 
The preceding shall not be construed as a guarantee of any particular
tax effect for the Executive’s compensation and benefits.


 


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IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date shown below.


 


 


	
  EXECUTIVE ACCEPTANCE

  	
  SPX CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/Lee S. Powell

  	
   

  	
  By:/s/Christopher J. Kearney

  
	
  Lee S. Powell

  	
       Christopher J. Kearney

  
	
   

  	
   

  
	
   

  	
  Its: Chairman, President and

  
	
   

  	
       Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  Date:  December 16, 2008

  
			



 


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