EXHIBIT 10.35


 


Amended and Restated Employment Agreement of Don L.
Canterna


 


This Employment Agreement (the “Agreement”) is effective as of November 20,
2008 (the “Effective Date”), by and between SPX Corporation (the “Company”),
and Don L. Canterna (the “Executive”).


 


WHEREAS,
the Company and the Executive previously entered into an employment agreement,
effective as of December 21, 2005, as amended (the “Previous Employment
Agreement”);


 


WHEREAS, the Company desires to continue to employ the Executive as an
Officer and Segment President;


 


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 as an Officer and Segment President.  During the Employment Term (as hereinafter
defined), the Executive will have the title, status and duties of an Officer and
Segment President and will report directly to the Company’s Chief Operating
Officer or the Company’s Chief Executive Officer.


 


2.                                       Term of Employment. 
The term of employment (“Employment Term”) will commence on the
Effective Date, and will continue thereafter until one (1) year from the
Effective Date and will be automatically extended for subsequent one (1) day
periods for each day of the Employment Term that passes after the Effective
Date, unless sooner terminated by either party in accordance with the
provisions of this Agreement.  The intent
of the foregoing provision is that the Agreement becomes “evergreen” on the
Effective Date so that on each passing day after the Effective Date the
Employment Term automatically extends to a full one-year period.


 


3.                                       Duties.  During the
Employment Term:


 


(a)                                  The
Executive will perform duties assigned by the Company’s Chief Executive
Officer, Chief Operating 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 an Officer and Segment President.


 


(b)                                 The
Executive will devote his full time and best efforts, talents, knowledge and
experience to serving as the Company’s Officer and Segment President.  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 Employment Term strictly
adhere to and obey all of the rules and regulations 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 or for or on behalf of any other person, firm or company that
competes, conflicts or interferes with the performance of his duties hereunder
in any material way.


 


4.                                       Compensation and Benefits. 
During the Executive’s employment hereunder, 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, seventy
five thousand dollars ($475,000).  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 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 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 


 


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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 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 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 


 


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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.  In the event that 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
appropriate coverage level, and subject to maximum annual inflation adjustment
thereafter of five (5) percent. 
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;


 


(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.


 


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(c)                                  Termination
of Employment for Death or Disability. 
In addition to the amounts determined under (b) 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 (i) 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 (ii) the date that a reputable
physician selected by the Board, and as to whom the Executive has no reasonable
objection, 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
reasonable request therefore by the Board, the Executive shall submit to
reasonable medical examination for the purpose of determining the existence,
nature and extent of any such disability. 
In accordance with Section 10, the Board shall promptly give the
Executive written notice of any such determination of the Executive’s
disability and of any decision of the Board to terminate the Executive’s
employment by reason thereof.  In the
event of disability, until the date of termination, the 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 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
Base Salary and annual bonus that the Company would have paid under the
Agreement had the Executive’s employment continued to the end of the Employment
Term.  For this purpose, annual bonus
will be determined as the highest of (A) the actual 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 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, life, disability, pension, profit
sharing and other executive benefit plans through the end of the Employment
Term, 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 


 


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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 (A) under 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 bonus) through
the end of the Employment Term 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 end of the Employment Term; 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.  The Company will bear the cost of such
perquisites, at the same level in effect immediately prior to 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.  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 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.


 


(iv)                              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 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) one (1) year,
or (B) the stock option expiration or other termination date.    Prior to a Change of Control, any 


 


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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 elected 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) assigning duties to the Executive that
are inconsistent with those of the position of an Officer and Segment President
for similar companies in similar industries (except to the extent the Company
promotes the Executive to a higher executive position); (ii) requiring the
Executive to report to other than the Company’s Chief Executive Officer, Chief
Operating Officer, or the Company’s Board; (iii) the failure of the
Company to pay any portion of the Executive’s compensation within 10 days of
the date such compensation is due; or (iv)  the Company’s failure to
continue in effect any applicable cash or stock-based incentive or bonus plan,
pension plan, welfare benefit plan or other benefit plan, program or
arrangement, unless the aggregate value of all such arrangements provided to
the Executive after such discontinuance is not materially less than the
aggregate value as of the Effective Date (using, for purposes of bonus plan
comparisons, the target bonus potential before and after any such
discontinuance).


 


(f)                                    Cause.  For purposes
of this Agreement, “Cause” shall mean:  (i) the
Executive’s willful and continued failure to substantially perform his duties
as an executive of the Company (other than any such failure resulting from
incapacity due to physical or mental illness) after a written demand for
substantial performance is delivered to the Executive by the Board, which
demand specifically identifies the manner in which the Board believes that the
Executive has not substantially performed his duties, and which gives the
Executive at least 30 days to cure such alleged deficiencies, (ii) the
Executive’s willful misconduct, which is demonstrably and materially injurious
to the Company, monetarily or otherwise, or (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.


 


(g)                                 Timing
of Payments.  Subject to Sections 5(h) and
5(i) and except as provided otherwise in this Agreement, all payments
described above in Section 5 shall be 


 


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made in a lump sum cash payment as soon as administratively practicable
(but in no event more than ten (10) 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(h)).


 


(h)                                 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 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),


 


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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.


 


(i)                                     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
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.                                       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.


 


7.                                       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.


 


8.                                       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.


 


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


 


10.                                 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, 


 


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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:


 


SPX Corporation


13515
Ballantyne Corporate Place


Charlotte,
NC 28277


Attention:
General Counsel


 


The
Company may change the person and/or address to whom 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.


 


11.                                 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.


 


12.                                 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.


 


13.                                 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.


 


14.                                 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 nor 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.


 


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15.                                 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 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 other source.


 


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


 


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


 


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


 


19.                                 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/Don L. Canterna

  	
   

  	
  By:/s/Christopher J.
  Kearney

  
	
  Don L. Canterna

  	
      
  Christopher J. Kearney

  
	
   

  	
   

  
	
   

  	
  Its: Chairman, President and Chief

        Executive Officer

  
	
   

  	
   

  
	
   

  	
  Date:December 16, 2008

  
			



 


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