EXHIBIT 10.3


 


Employment Agreement of J.
Michael Whitted


 


This Employment Agreement (the “Agreement”) is
effective as of April 22, 2009 (the “Effective Date”), by and between SPX
Corporation (the “Company”) and J. Michael Whitted (the “Executive”).


 


WHEREAS, the Company desires to employ the Executive
as its Vice President, Business Development;


 


WHEREAS, the Company and the Executive have reached
agreement concerning the terms and conditions of the Executive’s 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 Vice President, Business Development. 
During the Term (as hereinafter defined), the Executive will have the
title, status and duties of the Vice President, Business Development 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
the Executive’s principal family residence shall be located within fifty (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 the
Executive’s 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 of 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 of Control.


 


3.             Duties.  During the Term:


 


(a)           The Executive will perform
duties assigned by the Company’s Chief Executive Officer, other senior
executive officer, or the Company’s Board of Directors (the “Board”), from time
to time; provided that the Executive shall not be assigned duties or
responsibilities that are materially lower in status than those traditionally
assigned to the Vice President, Business Development.


 


(b)           The Executive will devote
the Executive’s full time and best efforts, talents, knowledge and experience
to serving as the Company’s Vice President, Business 


 

















 


Development.  However, the Executive may devote reasonable
time to activities such as supervision of personal investments and activities
involving professional, charitable, educational, religious, civic, and similar
types of activities, speaking engagements and membership on other boards of
directors, subject to Section 3(c) below, and provided such
activities do not interfere in any material way with the business of the
Company; and provided further that, the Executive cannot serve on any board of
directors without the Company’s Chief Executive Officer’s written consent, or
on the board of directors of more than one 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 the Executive in connection with such activities (e.g., director fees and honoraria).


 


(c)           The Executive will perform
the Executive’s 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 the Executive’s 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 the Executive’s
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 an annual
base salary (“Base Salary”) of four hundred and thirty-five thousand dollars ($435,000).  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 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 2009 bonus plan year, the Executive shall be eligible for a
target bonus under the Company’s bonus plan equal to eighty percent (80%) of
the Executive’s Base Salary, provided that all performance goals set by the
Company are met.  The Board (or
appropriate Board committee) will determine and communicate the Executive’s
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 


 


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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.  As the Board may determine in its discretion,
the Executive will be eligible to participate in any benefit plans offered by
the Company to similarly situated officers including, without limitation,
medical, dental, short-term and long-term disability, life insurance, pension,
profit sharing and nonqualified deferred compensation arrangements.  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 will 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 the
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, as the Board
may determine in its discretion.  The
Company also will reimburse the Executive for annual income tax return
preparation and financial planning up to $20,000 per year, provided that the
amount of such expenses available for reimbursement in one year shall not
affect the amount of expenses available for reimbursement in any other 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 five (5) weeks per calendar year.  The maximum vacation accrual allowed from
year to year and at any given time will equal the Executive’s annual
entitlement.  Once the maximum accrual is
reached, the Executive will no longer accrue vacation until the unused amount
accrued is below the maximum level allowed.


 


(g)           Retiree Medical.


 


(i)            The Executive shall be
entitled to receive retiree medical benefits during the Executive’s lifetime in
accordance with the eligibility requirements, terms and conditions, and plan
offerings for access to retiree medical benefits provided generally to
full-time employees of the Company.  The
Executive may cover the individual who is the Executive’s spouse as of the date
of the Executive’s termination of employment (the “Spouse”) and/or the
individuals who 


 


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are the Executive’s dependent children as of
the date of the Executive’s termination of employment (the “Dependents”), to
the extent eligible at the time of the Executive’s retirement, according to the
terms and conditions of the Company’s retiree medical benefit plan.  The cost of such benefits for the Executive,
the Executive’s Spouse and eligible Dependents, will be 100% of the premiums
and will 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 will 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.


 


(ii)           Upon reaching Medicare
eligibility due to age, Medicare shall become the primary payor of
medical/prescription benefits for the Executive, the Executive’s Spouse or
eligible Dependents as applicable, and the reimbursement of premiums for such
coverage by the Company shall cease.


 


(iii)          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 (11⁄2) 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%).


 


(iv)          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.


 


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(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.


 


(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 (as defined
below), the Executive (or the Executive’s 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.  For purposes of
this Agreement, “Disability” shall mean, in the written opinion of a qualified
physician selected by the Company, the Executive is by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than
twelve (12) months, (x) unable to engage in any substantial gainful activity,
or (y) receiving income replacement benefits for a period of not less than
three (3) months under a Company disability plan.


 


(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, death or Disability, or the Executive
voluntarily terminates employment for Good Reason, in addition to the benefits
payable under Section 5(b), the Company will pay the following amounts and
provide the following severance benefits:


 


(i)            The Executive’s Base Salary
through the one (1)-year anniversary of the Executive’s termination of
employment, and the Executive’s annual incentive bonus, which will be
determined as the higher of (A) the actual incentive bonus paid for the
bonus plan year immediately preceding such termination of employment, or (B) the
average annual bonus paid to the Executive for the three bonus plan years
preceding the year in which such termination of employment 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 of 


 


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employment 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 (1)-year anniversary of the Executive’s termination of
employment, at the same cost to the Executive as in effect on the date of the
Executive’s termination of employment, 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, as it may have been extended, 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 the Executive 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 (1)-year anniversary of the
Executive’s termination of employment shall be at the highest rate in effect
during the twelve (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 the
Executive’s termination of employment, including: (A) reimbursement for
club dues through the one (1)-year anniversary of the Executive’s termination
of employment; 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 termination of employment; 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 Executive’s
termination of employment.  The Company
will bear the cost of such perquisites, at the same level in effect immediately
prior to the Executive’s termination of 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 termination
of employment 


 


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


 


(iv)          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 the date of the Executive’s
termination of employment, and any such vested stock options will be
immediately exercisable at any time prior to the earlier of (A) two (2) years
from the Executive’s termination of employment, or (B) the stock option
expiration or other termination date, subject to the terms of the equity-based
compensation award and applicable insider trading policies and
regulations.  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 Executive’s
termination of 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 Executive’s termination of 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 (2) years following the initial existence of one (1) 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 the Executive’s 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 performance is
delivered to the Executive, which demand specifically identifies the manner in
which the Executive has not satisfactorily performed the Executive’s 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, 


 


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reputationally, or otherwise, (iii) the
Executive’s engaging in egregious misconduct involving serious moral turpitude
to the extent that the Executive’s 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 the Executive’s duties, or commission of 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; or (vii) the Executive’s
conviction of, or plea of nolo contendere to,
a felony or other crime involving moral turpitude.  In addition, 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 of Control has not occurred that
would extend the Agreement), the Executive may deliver the Executive’s written
resignation to the Company effective December 31, within thirty (30) days
prior to such December 31, and the Company will provide the Executive with
a lump sum payment equal to six (6) months of the Executive’s Base Salary
within thirty (30) days 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 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 


 


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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 Section 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
form of general release and waiver of claims 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) the Executive’s rights shall be limited to those made
available to the Executive under Section 5(b) above, and (ii) the
Company shall have no obligation to pay 


 


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or provide to the Executive
any amount or benefits described in Section 5(c) or Section 5(d),
or any other monies on account of the termination of the Executive’s
employment.


 


(k)           Removal from any Boards and
Positions.  Upon the
Executive’s termination of employment for any reason under this Agreement, the
Executive shall be deemed to resign (i) if a member, from the Board or board
of directors of any affiliate or any other board to which the Executive has
been appointed or nominated by or on behalf of the Company, (ii) from any
position with the Company or any affiliate, including, but not limited to, as
an officer of the Company or any of its affiliates, and (iii) as a
fiduciary of any employee benefit plan of the Company.


 


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 the Executive’s 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.  The Company
and the Executive agree that the jurisdiction and venue for any disputes
arising under, or any action brought to enforce, or otherwise relating to, this
Agreement shall be exclusively by arbitration, or in the courts (as provided by
Section 22) in the State of North Carolina, Mecklenburg County, including
the federal courts located therein or responsible therefor (should federal
jurisdiction exist), and the Company and the Executive hereby submit and
consent to said jurisdiction and venue.


 


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.  The Company
may, at its option (a) require the Executive to pay to the Company in cash
such amount as may be required to satisfy such withholding obligations or (b) make
other satisfactory arrangements with the Executive to satisfy such withholding
obligations.


 


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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:


 


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 11 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, in whole or in part, then it is the
parties’ mutual desire that such provision(s) be modified 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
otherwise clearly would 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 the Executive
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 


 


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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 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.


 


19.           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.


 


21.           Payments to Estate.  The executor of the Executive’s estate shall
be entitled to receive all amounts owing to the Executive at the time of death
under this Agreement in full settlement and satisfaction of all claims and
demands on behalf of the Executive.  Such
payments shall be in addition to any other death benefits of the Company and in
full settlement and satisfaction of all severance benefit payments provided for
in this Agreement.  In the event of the
Executive’s death or a judicial determination of the Executive’s incompetence,
reference in this Agreement to the “Executive” will be deemed to refer, where
appropriate, to the Executive’s estate or other legal representative.


 


22.           Dispute Resolution.  In the event of any dispute or claim relating
to or arising out of this Agreement, the Executive and Company agree that all
such claims or disputes shall be fully and finally resolved by binding
arbitration conducted by the American Arbitration Association (“AAA”) in
Charlotte, North Carolina in accordance with the AAA’s National Rules 


 


12

















 


for the Resolution of Employment Disputes, provided, however, that this
arbitration provision shall not apply to, and Company shall be free to seek,
injunctive or other equitable relief with respect to any actual or threatened
breach or violation by the Executive of any applicable non-compete,
non-solicitation, confidentiality or similar restrictive covenants with respect
to the Executive, in any court having appropriate jurisdiction.  The Executive acknowledges that by accepting
this arbitration provision he is waiving any right to a jury trial in the event
of a covered dispute.  The arbitrator
may, but is not required to, order that the prevailing party shall be entitled
to recover from the losing party its attorneys’ fees and costs incurred in any
arbitration arising out of this Agreement. 
The arbitrator will have the right only to interpret and apply the
provisions of this Agreement and may not change any of its provisions.  The arbitrator will permit reasonable
pre-hearing discovery of facts, to the extent necessary to establish a claim or
a defense to a claim, subject to supervision by the arbitrator.  The determination of the arbitrator will be
conclusive and binding upon the parties and judgment upon the same may be
entered in any court having jurisdiction thereof.  The arbitrator will give written notice to
the parties stating the arbitrator’s determination, and will furnish to each
party a signed copy of such determination. 
Any arbitration or action pursuant to this Section 22 will be
governed by and construed in accordance with the substantive laws of the State
of Delaware and, where applicable, federal law, without giving effect to the
principles of conflict of laws of Delaware. 
The Company will not be required to seek or participate in arbitration
regarding any actual or threatened breach of any applicable non-compete,
non-solicitation, confidentiality or similar restrictive covenants with respect
to the Executive, but may pursue its remedies, including injunctive relief, for
such breach in a court of competent jurisdiction in Charlotte, North Carolina,
or in the sole discretion of the Company, in a court of competent jurisdiction
where the Executive has committed or is threatening to commit a breach of the
Executive’s covenants, and no arbitrator may make any ruling inconsistent with
the findings or rulings of such court.


 


IN WITNESS
WHEREOF, the parties have executed this Agreement effective
as of the date first written above.


 


	
  EXECUTIVE
  ACCEPTANCE

  	
   

  	
  SPX
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ J. Michael Whitted

  	
   

  	
  By:

  	
  /s/Christopher J. Kearney

  
	
  J. Michael Whitted

  	
   

  	
   

  	
  Christopher J. Kearney

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Chairman, President and

  
	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
  April 22, 2009

  
					



 


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