EXHIBIT 10.44


 


    


 


November 20, 2008


 


 


Mr. Kevin L. Lilly


13515 Ballantyne
Corporate Place


Charlotte, North Carolina
28277


 


Dear Kevin:


 


SPX Corporation (the “Company”) recognizes that your contribution to
its growth and success will be substantial and desires to assure your continued
employment.  In this regard, the Board of
Directors of the Company (the “Board”) recognizes that, as is the case with
many publicly held corporations, the possibility of a Change of Control (as
defined in Section 2, below) may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in
the departure or distraction of management personnel to the detriment of the
Company and its shareholders.


 


The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of
the Company’s management, including yourself, to their assigned duties without
distraction, in the face of potentially disturbing circumstances arising from
the possibility of a Change of Control.


 


Further, it is the intent of the Board in adopting this agreement,
originally agreed to January 6, 2006 (the “Commencement Date”), and as
amended and restated herein (the “Agreement”) to assure the Company and its
shareholders (i) of continuity of management in the event of any actual or
threatened Change of Control and (ii) that key executive employees of the
Company will be able to evaluate objectively whether a potential Change of
Control is in the best interests of the shareholders.


 


In order to induce you to remain in the employ of the Company and to
advance the interests of the Company and its shareholders by providing you with
appropriate financial protection, the Board agrees that you shall receive the
severance benefits set forth in this Agreement in the event that your
employment is terminated due to a Change of Control as specifically provided in
the remainder of this Agreement.  For
purposes of this Agreement, your employment with the Company shall be deemed to
be terminated when you have a “Separation from Service” within the meaning of Section 409A
of the Internal Revenue Code of 1986 (the “Code”), and references to your
termination of employment shall be deemed to refer to a Separation from
Service.


 













 


1.        Term of Agreement.  This Agreement will become effective on the
date hereof, and shall continue in effect through the third anniversary of the
Commencement Date (the “Date of Expiration”). 
However, on that initial Date of Expiration, and on each extended Date
of Expiration thereafter, the term of this Agreement will be extended
automatically for one additional year unless, not later than six (6) months
prior to such Date of Expiration, the Company gives written notice to you that
it has elected not to extend this Agreement. 
However, if a Change of Control occurs during the term of this
Agreement, this Agreement will continue in effect for thirty-six (36) months
beyond the end of the month in which the Change of Control occurred.


 


2.        Change of Control of
the Company.  No benefits will be
payable under the terms of this Agreement unless a Change of Control of the
Company has occurred.  A “Change of
Control” shall be deemed to have occurred if:


 


(a)       Any “Person” (as defined
below), excluding for this purpose the Company or any subsidiary of the
Company, any employee benefit plan of the Company or of any subsidiary of the
Company, or any entity organized, appointed or established for or pursuant to
the terms of any such plan which acquires beneficial ownership of common shares
of the Company, is or becomes the “Beneficial Owner” (as defined below) of
twenty percent (20%) or more of the common shares of the Company then
outstanding; provided, however, that no Change of Control shall be deemed to
have occurred as the result of an acquisition of common shares of the Company
by the Company which, by reducing the number of shares outstanding, increases
the proportionate beneficial ownership interest of any Person to twenty percent
(20%) or more of the common shares of the Company then outstanding, but any
subsequent increase in the beneficial ownership interest of such a Person in
common shares of the Company shall be deemed a Change of Control; and provided
further that if the Board of Directors of the Company determines in good faith
that a Person who has become the Beneficial Owner of common shares of the
Company representing twenty percent (20%) or more of the common shares of the
Company then outstanding has inadvertently reached that level of ownership
interest, and if such Person divests as promptly as practicable a sufficient
number of shares of the Company so that the Person no longer has a beneficial
ownership interest in twenty percent (20%) or more of the common shares of the
Company then outstanding, then no Change of Control shall be deemed to have
occurred.  For purposes of this paragraph
(a), the following terms shall have the meanings set forth below:


 


(i)       “Person” shall mean any
individual, firm, limited liability company, corporation or other entity, and
shall include any successor (by merger or otherwise) of any such entity.


 













 


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Kevin L. Lilly


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(ii)       “Affiliate” and “Associate”
shall have the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the “Exchange Act”).


 


(iii)      A Person shall be deemed the
“Beneficial Owner” of and shall be deemed to “beneficially own” any securities:


 


(A)      which such Person or any of
such Person’s Affiliates or Associates beneficially owns, directly or
indirectly (determined as provided in Rule 13d-3 under the Exchange Act);


 


(B)      which such Person or any of
such Person’s Affiliates or Associates has (1) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person’s Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; or (2) the right to vote
pursuant to any agreement, arrangement or understanding; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding to vote such
security (a) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (b) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report); or


 


(C)      which are beneficially
owned, directly or indirectly, by any other Person with which such Person or
any of such Person’s Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between underwriters
and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding, voting
(except to the


 













 


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Kevin L. Lilly


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extent contemplated by
the proviso to subparagraph (a)(iii)(B)(2), above) or disposing of any
securities of the Company.


 


Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase “then outstanding,” when used
with reference to a Person’s beneficial ownership of securities of the Company,
shall mean the number of such securities then issued and outstanding together
with the number of such securities not then actually issued and outstanding
which such Person would be deemed to own beneficially hereunder.


 


(b)       During any period of two (2) consecutive
years (not including any period prior to the execution of this Agreement),
individuals who at the beginning of such two-year period constitute the Board
of Directors of the Company and any new director or directors (except for any
director designated by a person who has entered into an agreement with the
Company to effect a transaction described in paragraph (a), above, or paragraph
(c), below) whose election by the Board or nomination for election by the
Company’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority of the Board;
or


 


(c)       Approval by the
shareholders of (or if such approval is not required, the consummation of) (i) a
plan of complete liquidation of the Company, (ii) an agreement for the
sale or disposition of the Company or all or substantially all of the Company’s
assets, (iii) a plan of merger or consolidation of the Company with any
other corporation, or (iv) a similar transaction or series of transactions
involving the Company (any transaction described in parts (i) through (iv) of
this paragraph (c) being referred to as a “Business Combination”), in each
case unless after such a Business Combination the shareholders of the Company
immediately prior to the Business Combination continue to own at least eighty
percent (80%) of the voting securities of the new (or continued) entity
immediately after such Business Combination, in substantially the same
proportion as their ownership of the Company immediately prior to such Business
Combination.


 


Any other provision of this Agreement to the contrary
notwithstanding, a “Change of Control” shall not include any transaction
described in paragraph (a) or (c), above, where, in connection with such
transaction, you and/or any party acting in concert with you substantially
increase your, his or its, as the case may be, ownership interest in the
Company or a successor to the Company (other than through conversion of prior
ownership interests in the Company and/or through equity awards received
entirely as compensation for past or future personal services).


 













 


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Kevin L. Lilly


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3.        Definitions.  The following definitions shall be used in
determining whether, under the terms of Section 4 hereof, you are entitled
to receive Accrued Benefits and/or Severance Benefits:


 


(a)       Disability.  “Disability” shall mean that, as a result of
your incapacity due to physical or mental injury or illness, you shall have
been absent from the full-time performance of your duties with the Company for
at least six (6) consecutive months and, within thirty (30) calendar days
after written notice of suspension is given, you shall not have returned to the
full-time performance of your duties.


 


(b)       Retirement.  “Retirement” shall mean your voluntary
termination of your employment (other than for Good Reason, as defined below)
at a time after you have reached age sixty-five (65).


 


(c)       Cause. 
“Cause” shall mean (i) your willful and continued failure to
substantially perform your duties with the Company (other than any such failure
resulting from Disability or occurring after issuance by you of a Notice of
Termination for Good Reason), after a demand for substantial performance is
delivered to you that specifically identifies the manner in which the Company
believes that you have not substantially performed your duties, and after you
have failed to resume substantial performance of your duties on a continuous
basis within fourteen (14) calendar days after receiving such demand, (ii) you
willfully engage in conduct which is demonstrably and materially injurious to
the Company, monetarily or otherwise, or (iii) your having been convicted
of a felony which impairs your ability substantially to perform your duties
with the Company.  For purposes of this
paragraph (c), no act, or failure to act, on your part shall be deemed “willful”
unless done, or omitted to be done, by you not in good faith and without
reasonable belief that your action or omission was in the best interest of the
Company.


 


(d)       Good Reason.  You shall be entitled to terminate your
employment for Good Reason. For purpose of this Agreement, “Good Reason” shall
mean, without your express written consent, the occurrence within three (3) years
following a Change of Control of the Company of any one or more of the
following:


 


(i)       The assignment to you of duties inconsistent
with your duties, responsibilities, and the status of your position as of the
day prior to the Change of Control of the Company, or a reduction or alteration
in the nature or status of your responsibilities from those in effect on the
day prior to the Change of Control;


 













 


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Kevin L. Lilly


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(ii)       A reduction by the Company in your base salary
or in your most recent annual target incentive award opportunity as in effect
on the date hereof or as the same shall be increased from time to time;


 


(iii)      The Company’s requiring you to be based at a
location in excess of two hundred and fifty (250) miles from the location where
you are currently based;


 


(iv)      The failure by the Company to continue in effect
the Company’s Pension Plan, Retirement Savings Plan, Supplemental Retirement
Savings Plan, Supplemental Retirement Plan, Executive Bonus Plan, Stock
Compensation Plan, any plans substituted for the above adopted prior to the
Change of Control, or any other of the Company’s employee benefit plans,
policies, practices or arrangements in which you participate, unless an
equitable arrangement (embodied in an ongoing substitute or alternative plan)
to provide similar benefits has been made with respect to such plan(s); or the
failure by the Company to continue your participation therein (or in such
substitute or alternative plan) on substantially the same basis, both in terms
of the amount of benefits provided and the level of your participation relative
to other participants, as existed as of the time of the Change of Control;


 


(v)       The failure of the Company to reinstate your
employment in full (in the same capacity that you were employed, or in a
mutually agreeable capacity) in the event that your employment was suspended
due to a Disability and, within three years, you request to be reinstated and
are ready, willing, and able to adequately perform your employment duties;


 


(vi)      The termination, replacement, or reassignment of
twenty-five percent (25%) or more of the elected officers of the Company
existing as of the day prior to a Change of Control, unless the officer is
terminated due to death, Disability, or Retirement, or by the Company for
Cause, or by the officer other than for Good Reason (all as herein defined);


 


(vii)     The failure of the Company to obtain a
satisfactory agreement from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Section 5 hereof; and


 


(viii)     Any purported termination by the Company of your
employment that is not effected pursuant to a Notice of Termination satisfying
the requirements of paragraph (f), below, and for purposes of this Agreement,
no such purported termination shall be effective.


 













 


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Kevin L. Lilly


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(ix)      At any time during the one (1) year period
beginning thirty (30) days following a Change of Control, you shall be entitled
to terminate your employment for any reason, and such termination shall be
deemed to be for Good Reason for all purposes of this Agreement.


 


Your right to terminate your employment pursuant to
this paragraph (d) shall not be affected by your suspension due to
Disability.  Your continued employment
shall not constitute a waiver of your rights with respect to any circumstance
constituting Good Reason hereunder.


 


(e)       Notice of Termination.  Any termination by the Company for Cause or
by you for Good Reason shall be communicated by Notice of Termination to the
other party hereto.  For purposes of this
Agreement, a “Notice of Termination” shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the provisions so
indicated.


 


(f)       Date of Termination.  “Date of Termination” shall mean the date
specified in the Notice of Termination where required (but not less than thirty
(30) calendar days following delivery of the Notice of Termination, except that
termination for Cause may be effective immediately) or in any other case upon
ceasing to perform services to the Company; provided that if within twenty (20)
calendar days after any Notice of Termination one party notifies the other
party that a dispute exists concerning the termination, the Date of Termination
shall be the date finally determined to be the Date of Termination, either by
written agreement of the parties or by a binding and final arbitration
decision.  In the event that a dispute
exists concerning the Date of Termination, you shall continue to receive your
full compensation (including participation in all benefit and insurance plans
in which you were participating) in effect when the notice giving rise to the
dispute was given, until the Date of Termination is finally determined.  In such event, you will be required to
reimburse the Company for all compensation received beyond the finally
determined Date of Termination either by direct cash reimbursement within
thirty (30) calendar days of resolving the conflict or by appropriately
reducing your remaining benefits to be received under the terms of this
Agreement.


 


(g)       Earned Bonus Amount.  For
any year prior to the year during which a Change of Control occurs, your “Earned
Bonus Amount” means your actual bonus for that year. For the year during which
a Change of Control occurs, your “Earned Bonus Amount” means your total
potential bonus for the year as determined under the 2005 Executive 













 


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Kevin L. Lilly


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Bonus
Plan or applicable successor bonus plan (the “Bonus Plan”), according to the business
performance metric achieved, and prorated to reflect your length of service
during the Bonus Plan year.


 


4.        Compensation
Upon Termination Following a Change of Control


 


(a)       Accrued Benefits.  In the event that your employment is
terminated for any reason during the term of this Agreement following a Change
of Control of the Company (as defined in Section 2 herein), you shall
receive your Accrued Benefits through the Date of Termination.  For purposes of this Agreement, your “Accrued
Benefits” shall include the following:


 


(i)       All base salary for the time period ending with
your Date of Termination, at the rate in effect at the time Notice of
Termination is given or on the Date of Termination if no Notice of Termination
is required;


 


(ii)       A bonus payment equal to one hundred percent
(100%) of the greater of (A) your target bonus for the year in which the
Date of Termination occurs, prorated based upon the ratio of the number of
months (full credit for a partial month) you were employed during that bonus
year to the total months in that bonus year, and (B) your Earned Bonus Amount
for the year in which the Date of Termination occurs, calculated as if the Date
of Termination were the end of that year for purposes of the Bonus Plan;


 


(iii)      A cash equivalent of all unused vacation to which
you were entitled through your Date of Termination;


 


(iv)      Reimbursement for any and all monies advanced in
connection with your employment for reasonable and necessary expenses incurred
by you on behalf of the Company for the time period ending with your Date of
Termination;


 


(v)       Any and all other cash earned through the Date
of Termination and deferred at your election or pursuant to any deferred
compensation plan then in effect;


 


(vi)      An accrued benefit under the SPX Corporation
Supplemental Retirement Plan for Top Management (the “SERP”);


 


(vii)     All other amounts to which you are entitled under
any compensation or benefit plan, program, practice or policy of the Company in
effect as of the Date of Termination; and


 













 


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Kevin L. Lilly


Page 9


 


(viii)     Subject to Section 4(e), the payments
provided for in paragraphs (i), (ii), (iii), (iv) and (v), above, shall be
made in a lump sum cash payment as soon as administratively practicable (but in
no event more than ten (10) days) following your 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.


 


(b)       Severance Benefits.  In the event that your employment is
terminated during the term of this Agreement following a Change of Control of
the Company (as described in Section 2 herein), unless your termination is
(i) because of your death, Disability, or Retirement; (ii) by the
Company for Cause; or (iii) by you other than for Good Reason, you shall
receive, in addition to your Accrued Benefits, the Severance Benefits.  For purposes of this Agreement, your “Severance
Benefits” shall include the following:


 


(i)       Your annual base salary at the rate in effect
immediately prior to the Change of Control of the Company or, if greater, at
the rate in effect at the time Notice of Termination is given, or on the Date
of Termination if no Notice of Termination is required, multiplied by two (2);


 


(ii)       An amount equal to two (2) times the
greatest of (I) the highest of your Earned Bonus Amounts for the three (3) years
immediately preceding the year in which the Date of Termination occurs (the “Year
of Termination”) or (II) your target bonus under the Bonus Plan for the
Year of Termination or (III) your Earned Bonus Amount for the Year of
Termination, calculated as if the Date of Termination were the end of that year
for purposes of the Bonus Plan;


 


(iii)      For a two (2) year period after your Date of
Termination, the Company will arrange to provide to you the same health care
coverage you had prior to your termination, at the Company’s expense, which
includes, but is not limited to, hospital, surgical, medical, dental, and
dependent coverages.  For purposes of the
Retirement Plan health care coverage, you will receive the same number of
additional years of credited service, for computing your benefit, as normally
computed under the terms of the Plan. 
Health care benefits otherwise receivable by you pursuant to this
subparagraph (iii) shall be reduced to the extent comparable benefits are
actually received by you from a subsequent employer during the two (2) year
period following your Date of 


 













 


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Kevin L. Lilly


Page 10


 


Termination, and any such
benefits actually received by you shall be reported to the Company.  To the extent the provision of health care
benefits receivable by you pursuant to this subparagraph (iii) extends
beyond the COBRA continuation period, such benefits 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);


 


(iv)      For a two (2) year period after your Date of
Termination, the Company will arrange to provide to you, at the Company’s
expense, life insurance coverage in the amount of two (2) times your base
salary in effect at your Date of Termination and, at the end of the two (2) year
period, for the remainder of your life the Company will provide to you life
insurance coverage in the amount of your base salary in effect at your Date of
Termination, 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);


 


(v)       Under the Company’s Pension Plan and
Supplemental Retirement Plan for Top Management, you will receive immediate
full vesting as of your Date of Termination and receive two (2) additional
full years of service credit for computing your accrued retirement benefit
under both plans. Further, in computing the accrued retirement benefits under
both plans, two (2) years will be added to your actual age, and the
definition of “Final Average Pay” (base and bonus) shall be the greater of (A) your
highest three (3) year average or (B) the sum of your actual base
salary in effect at your Date of Termination plus the greatest of the bonus
amounts described in parts (B)(I), (II) and (III) of subparagraph
(ii), above, with the additional benefits, to the extent not payable under the
Pension Plan, to be paid as an additional benefit under the Supplemental
Retirement Plan for Top Management;


 


(vi)      Under the Company’s Supplemental Retirement
Savings Plan (the “SRSP”), you will receive a cash lump sum payment of the full
balance (vested and unvested) of your Pre-2005 Account (as defined in the SRSP);


 


(vii)     Each stock option which you have been granted by
the Company and which is not yet vested shall become immediately vested and
exercisable and shall continue to be exercisable for the lesser of (A) two
(2) years following your Date of Termination or (B) the time
remaining until the originally designated expiration date, unless a longer
exercise period is provided for in the applicable plan or award agreement;










 


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Kevin L. Lilly


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(viii)     Any
contractual restrictions placed on shares of restricted stock or other equity
based compensation awards which you have been awarded pursuant to the Company’s
Stock Compensation Plan shall lapse as of your Date of Termination;


 


(ix)      If
any portion of the Severance Payments (in the aggregate, “Total Payments”) will
be subject to the golden parachute “Excise Tax” imposed by Section 4999 of
the Code, the Company shall pay to you an additional amount (the “Gross-Up
Payment”) such that the net amount retained by you after deduction of any
Excise Tax (including any related penalties and interest) on the Total Payments
(but not any federal, state, or local income tax on the Total Payments), and
any federal, state, and local income tax and Excise Tax (including any related
penalties and interest) on the Gross-Up Payment, shall be equal to the Total
Payments.  The determination of whether
any Excise Tax will be imposed and of the amount of the Gross-Up Payment will
be made by tax counsel selected by the Company’s independent auditors and
acceptable to you. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) any
other payments or benefit received or to be received by you in connection with
a Change of Control of the Company or your termination of employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement, or
agreement with the Company) shall be treated as “parachute payments” within the
meaning of Section 280G(b)(2) of the Code, and all “excess parachute
payments” within the meaning of Section 280G(b)(1) shall be treated
as subject to the Excise Tax, unless in the opinion of such tax counsel such
other payments or benefits (in whole or in part) do not constitute parachute
payments, or such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of
the Code, and (B) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Company’s independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code.  For purposes of determining the
amount of the Gross-Up Payment, you shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation for the calendar year
in which the Gross-Up Payment is made and state and local income taxes at the
highest marginal rates of taxation in the state and locality of your residence
(at the time at which the Gross-Up Payment is made) as effective for the
calendar year in which the Gross-Up Payment is made, net of the maximum
reduction in federal income taxes which could be obtained from deduction of
such state and local taxes.


 













 


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The payments provided for in this subparagraph (ix) shall
be made not later than thirty (30) calendar days following your Date of Termination;
provided, however, that if the amounts of such payments cannot be finally
determined on or before such day, the Company shall pay to you on such day an
estimate, as determined in good faith by such tax counsel, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later
than sixty (60) calendar days after your Date of Termination.  In the event that the amount of the estimated
payment exceeds the amount subsequently determined to have been due, such
excess shall be repaid as soon as practicable after demand by the Company.  Notwithstanding the foregoing, the sixty (60)
day period for deferment of the Gross-Up Payment shall not preempt or otherwise
eliminate your right to receive any other payments to which you are entitled
under this subparagraph or otherwise under the terms of this Agreement and to
receive additional Gross-Up Payments based on such additional payments pursuant
to this subparagraph;


 


(x)       To the full extent
permitted by law, the Company shall indemnify you (including the advancement of
expenses) for any judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys’ fees, incurred by you in connection with the
defense of any lawsuit or other claim to which you are made a party by reason
of being or having been an officer, director or employee of the Company or any
of its subsidiaries.  In addition, you
will be covered by director and officer liability insurance to the maximum
extent that such insurance maintained by the Company from time to time covers
any officer or director (or former officer or director) of the Company.  Any costs and expenses that are to be paid or
reimbursed pursuant to the preceding provisions of this paragraph (x) shall
be reimbursed in accordance with the requirements of Section 409A and
Treasury Regulation § 1.409A-3(i)(1)(iv) (or
any similar or successor provisions).


 


(xi)      You will be entitled to
receive outplacement services, at the expense of the Company, from a provider
reasonably selected by you.  Such
outplacement services must be incurred by you no later than the end of the
calendar year that includes the second anniversary of the termination of your
employment.  If applicable, reimbursement
of such expenses shall be made to you no later than the end of the calendar
year that includes the third anniversary of the termination of your
employement.


 













 


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(xii)      The Company also shall pay
to you all legal fees and expenses incurred by you as a result of such
termination of employment (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Code to any payment or benefit provided
hereunder), provided that such fees and expenses that are to be paid or
reimbursed pursuant to the preceding provisions of this paragraph (xii) shall
be reimbursed in accordance with the requirements of Section 409A and
Treasury Regulation § 1.409A-3(i)(1)(iv) (or
any similar or successor provisions); and


 


(xiii)     Subject to Section 4(e) and
except as otherwise provided in this Agreement, the payments provided in
paragraphs (i), (ii), (v) if a lump sum has been elected previously in
accordance with the terms of the applicable plan, (vi) and (xii) above,
shall be made  in a lump sum cash payment as soon as administratively practicable (but
in no event more than ten (10) days) following your 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.  As all
of the payments referenced in the first sentence of this subparagraph (xiii)
are included for purposes of determining the Gross-Up Payment, the thirty (30)
day period identified above shall not preempt or otherwise eliminate your right
to receive any other payments to which you are entitled under the terms of this
Agreement and to receive additional Gross-Up Payments based on such additional
payments.


 


(c)       Any
provision in this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if your employment with the Company is terminated within six
(6) months prior to the date on which the Change of Control occurs, and if
you reasonably demonstrate that such termination of employment (i) was at
the request of a third party who has taken steps reasonably calculated to
effect the Change of Control, (ii) otherwise arose in connection with or
anticipation of the Change of Control, or (iii) would not have occurred or
would be less likely to have occurred if the Change of Control were not
anticipated, then for all purposes of this Agreement the termination of your
employment shall be deemed to have occurred following the Change of Control.


 













 


Executive Change of
Control Agreement


Kevin L. Lilly


Page 14


 


(d)       You
shall not be required to mitigate the amount of any payment provided for in
this Section 4 by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Section 4 be reduced by any
compensation earned by you as the result of employment by another employer
after your Date of Termination, or otherwise, with the exception of a reduction
in your insurance benefits as provided in Section 4(b)(iii).


 


(e)       If, at the time you become entitled to your Accrued Benefits and your
Severance Benefits under this Section 4, you are a “specified employee”
(as defined under Section 409A), then, notwithstanding any other provision
in this Agreement to the contrary, the following provisions shall apply.


 


(i)       None of your Accrued Benefits and Severance Benefits considered
deferred compensation under Section 409A and not subject to an exception
or exemption thereunder shall be paid to you until the date that is six (6) months
after your termination or, if earlier, the date of your death (the “Six Month
Delay Rule”).  Any such Accrued Benefits
and Severance Benefits that would otherwise have been paid to you during this
six-month period (the “Six Month Delay”) shall instead be aggregated and paid
to you no later than ten (10) days following the date that is six (6) months
after your termination (together with interest at the interest credit rate
provided in the SPX Corporation Individual Account Retirement Plan).  Any Accrued Benefits and Severance Benefits
to which you are entitled to be paid under this Section 4 after the date
that is six (6) months after your termination shall be paid to you in
accordance with the applicable terms of Section 4.


 


(ii)       During the Six-Month Delay, the Company will pay to you the applicable
payments set forth in this Section 4, 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


 













 


Executive Change of
Control Agreement


Kevin L. Lilly


Page 15


 


(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 you by the Company under this Section 4
on account of your separation from service and any applicable Company benefit
plan.


 


(f)       The Company shall deliver to you a release in favor of the Company that
is acceptable to the Company (the “Release”) as soon as administratively
feasible following your termination of employment.  Notwithstanding anything in this Agreement to
the contrary, no payments pursuant to Section 4(a)(ii) or Section 4(b) shall
be made prior to the date that both (i) you have 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 you 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 your termination of employment.  If you do 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) your
rights shall be limited to those made available to you under Section 4(a) above
(excluding Section 4(a)(ii)), and (ii) the Company shall have no
obligation to pay or provide to you any amount or benefits described in Section 4(a)(ii) or
Section 4(b), or any other monies on account of the termination of your
employment.


 


5.        Successors; Binding
Agreements.


 


(a)       The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company or of any division or subsidiary thereof employing
you to expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession had taken place.  Failure
of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle you to compensation from the Company in the same amount and on
the same terms to which you would be entitled hereunder if you terminated your
employment for Good Reason following a Change of Control, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed your Date of Termination.


 













 


Executive Change of
Control Agreement


Kevin L. Lilly


Page 16


 


(b)       This
Agreement shall inure to the benefit of and be enforceable by your personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees.  If
you should die while any amount would still be payable to you hereunder if you
had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement, to your devisee,
legatee or other designee or, if there is no such designee, to your estate.


 


6.        No Funding of Benefits.  Nothing herein contained shall require or be
deemed to require the Company to segregate, earmark, or otherwise set aside any
funds or other assets to provide for any payments to be made hereunder.  Your rights under this Agreement shall be
solely those of a general creditor of the Company.  However, in the event of a Change of Control,
the Company may deposit cash or property, or both, equal in value to all or a
portion of the benefits anticipated to be payable hereunder into a trust, the
assets of which are to be distributed at such times as are otherwise provided
for in this Agreement and are subject to the rights of the general creditors of
the Company.


 


7.        Withholding of Taxes.  The Company may withhold from any amounts
payable under this Agreement all federal, state, city, or other taxes as
legally shall be required.


 


8.        Notice.  For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement.


 


9.                                       Miscellaneous.  No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by you and such officer as may be specifically
designated by the Board.  The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Michigan.


 


10.       Employment Rights.  This Agreement shall not confer upon you any
right to continue in the employ of the Company or its subsidiaries and, except
to the extent that benefits may become payable under Section 4, above,
shall not in any way affect the right of the Company or its subsidiaries to
dismiss or otherwise terminate your employment at any time and for any reason
with or without cause.


 


11.       No Vested Interest.  Neither you nor your beneficiaries shall have
any right, title or interest in any benefit under this Agreement prior to the
occurrence of all of the events specified herein as necessary conditions to
such right, title or interest.


 













 


Executive Change of
Control Agreement


Kevin L. Lilly


Page 17


 


12.       Prior Agreements.  This Agreement contains the understanding
between the parties hereto with respect to severance benefits in connection
with a Change of Control of the Company and supersedes any prior such agreement
between the Company (or any predecessor of the Company) and you.  If there is any discrepancy or conflict
between this Agreement and any plan, policy and program of the Company
regarding any term or condition of severance benefits in connection with a
Change of Control of the Company, the language of this Agreement shall govern.


 


13.                                 Validity.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.


 


14.                                 Counterparts.  This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.


 


15.                                 Arbitration.  Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
in accordance with the rules of the American Arbitration Association then
in effect.  Judgment may be entered on
the arbitrator’s award in any court having jurisdiction.  However, you shall be entitled to seek in
court specific performance of your right, pursuant to Section 3(f), above,
to be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.


 


16.       409A Compliance.  To
the extent any provision of this Agreement or action by the Company would
subject you to liability for interest or additional taxes under 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 Section 409A,
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 4 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 Section 409A.  The
preceding shall not be construed as a guarantee of any particular tax effect
for your compensation and benefits.


 













 


Executive Change of
Control Agreement


Kevin L. Lilly


Page 18


 


If this letter properly sets forth our agreement on
the subject matter hereof, kindly date, sign and return to the Company the
enclosed copy of this letter, which will then constitute our agreement on this
subject.


 


 


	
  EXECUTIVE ACCEPTANCE

  	
  SPX CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/Kevin L.
  Lilly

  	
   

  	
  By: /s/Christopher
  J. Kearney

  
	
  Kevin L. Lilly

  	
        Christopher
  J. Kearney

  
	
   

  	
   

  
	
   

  	
  Its:

  	
  Chairman, President and
  Chief 

  Executive Officer

  
	
   

  	
   

  
	
   

  	
  Date:December 16, 2008