Exhibit 10.27
AMENDED AND RESTATED
DEFERRED COMPENSATION PLAN OF
UNITED DOMINION INDUSTRIES, INC.
Effective as of May 24, 2001, SPX Corporation ("SPX") acquired United
Dominion Industries Limited ("UDI"). UDI, on behalf of itself and its
Subsidiaries and Affiliates which have adopted the Plan (UDI and its adopting
Subsidiaries and Affiliates being hereinafter referred to collectively as the
"Company"), hereby amends and restates the United Dominion Industries, Inc.
Deferred Compensation Plan (the "Plan") effective as of May 24, 2001.
Article I
Definitions
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1.01 Administrative Committee shall mean the SPX Corporation Retirement and
Welfare Plan Administrative Committee.
1.02 Account Balance shall mean the combined balance of the Benefit
Accounts for Retirement Deferrals and Short-Term Deferrals.
1.03 Adoption Agreement shall mean a written agreement between a
Participant and the Company whereby a Participant agrees to defer a portion of
such Participant's Compensation pursuant to the provisions of the Plan and the
Company agrees to make benefit payments in accordance with the provisions of the
Plan. The Adoption Agreement shall include and incorporate a deferral
Withholding Request form and the Adoption Agreement will be effective as of the
date the Participant enrolls in the Plan.
1.04 Beneficiary shall mean any person, persons or entities designated by a
Participant to receive benefits hereunder upon the death of such Participant.
1.05 Benefit Account(s) shall mean the account(s) maintained on the books
of the Company for each Participant pursuant to Section 5.01 hereof.
1.06 Company shall mean collectively UDI and the Subsidiaries and
Affiliates of UDI which may have adopted the Plan.
1.07 Compass Plan shall mean the United Dominion Industries, Inc. Compass
Plan which is a defined contribution plan qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended.
1.08 Compensation shall mean the total amount of all remuneration payable
by the Company to a Participant for services rendered to the Company before any
reduction under the Compass Plan or under a cafeteria plan within the meaning of
Section 125 of the Internal Revenue Code of 1986, as amended. Compensation shall
not include expense reimbursements, credits made by the Company under this Plan,
payments made by the Company for group
insurance, hospitalization and like benefits, or contributions made by the
Company under any other employee benefit plan the Company maintains. Any
deferred compensation benefit payments under this Plan shall not be deemed
salary or other compensation to the Participant eligible for computation of
benefits to which a Participant may be entitled under the pension plan,
profit-sharing plan, defined benefit plan, defined contribution plan or other
qualified retirement plans of the Company in which such Participant
participates. The deferred compensation benefit payments payable by the Company
to a Participant pursuant to this Plan shall be treated as taxable income to the
Participant.
1.09 Deferral Period shall mean the period of time during which
Compensation is being deferred pursuant to a Participant's Adoption Agreement
and Article III of the Plan.
1.10 Determination Date shall mean the last date of the Plan Year.
1.11 Interest Yield shall mean, with respect to a Plan Year, the interest
rate applicable for such Plan Year established by the Administrative Committee.
The interest rate for Short-Term Deferrals may differ from the interest rate for
Retirement Deferrals.
1.12 Key Employees shall mean employees of the Company who are performing
services for the Company and who are designated as a Key Employee by the
Administrative Committee. A person designated as a Key Employee shall remain so
until such designation is revoked by the Administrative Committee, in its sole
discretion.
1.13 Participant shall mean a Key Employee designated by the Administrative
Committee to be eligible to participate in the Plan and who has completed an
Adoption Agreement accepted by the Administrative Committee as evidenced by an
authorized signature.
1.14 Plan Entry Date shall mean January 1 of each Plan Year.
1.15 Plan Year shall mean the twelve-month period on which the Plan records
are kept, which shall begin on January 1 and end on December 31.
1.16 Retirement Deferral shall mean the Stated Deferral designated as
Retirement Deferral on the Withholding Request Form as elected by the
Participant.
1.17 Short-Term Deferral shall mean the Stated Deferral designated as
Short-Term Deferral on the Withholding Request Form as elected by the
Participant.
1.18 Stated Deferral shall mean the amount of Compensation a Participant
agrees to defer as designated on the Withholding Request Form.
1.19 Subsidiary(s) and Affiliate(s) shall mean any corporation or other
entity during any period while it is, together with UDI, a member of the same
controlled group of corporations or an affiliated service group under common
control (within the meaning of Section 414(b), (c) or (m) of the Internal
Revenue Code of 1986, as amended.)
1.20 Successor Company shall mean any company designated as such by the
Company in the Company's sole and exclusive discretion by reason of such
company's purchasing a
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business unit of the Company and one or more Key Employees transferring
employment to such company in connection with such transaction.
1.21 Termination of Employment shall mean the Participant's ceasing to be
employed by the Company or, if applicable, a Successor Company for any reason
except death.
1.22 Withholding Request Form shall mean a written document signed by the
Participant, whereby the Participant designates the amount of the Stated
Deferral to be made, including Retirement Deferrals and Short-Term Deferrals,
and designates the payout date for Short-Term Deferrals consistent with option
made available to the Participant by the Administrative Committee from time to
time.
Article II
Eligibility and Participation
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2.01 Participation. Effective as of December 31, 2001, each individual who
became a Participant on or before such date shall continue to be a Participant
to the extent provided herein. On or after January 1, 2002, no individual may
become a Participant in the Plan.
2.02 Failure of Eligibility. A Participant shall cease to be eligible to
participate in the Plan upon Termination of Employment or, if earlier, upon
revocation by the Administrative Committee of the Participant's status as a Key
Employee. A person who ceases to be eligible to participate in the Plan during a
Deferral Period will have no further right to defer Compensation hereunder.
However, the employment of a Participant shall not be deemed to be terminated by
reason of an approved leave of absence granted in accordance with uniform rules
applied in a non-discriminatory manner or employment by a Successor Company.
Article III
Participant Compensation Deferral
---------------------------------
3.01 Deferrals. Effective as of December 31, 2001, no additional deferrals
may be made under or to the Plan.
Article IV
Insurance Contracts and Company Contributions
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4.01 Insurance and Annuity Contracts. The Company, in its sole discretion,
may apply for and procure as owner and for its own benefit insurance and
annuities on the life of a Participant in such amounts and in such forms as the
Company may choose. The Participant shall have no interest whatsoever in any
such policy or policies, but at the request of the Company, shall submit to
medical examinations and shall accurately and truthfully supply such information
and execute such documents as may be required by the insurance company or
companies to which the Company has applied for insurance. Any insurance policy
and annuity acquired by or held by the Company in connection with the
liabilities assumed by it pursuant to the Plan shall not be deemed to be held
under any trust for the benefit of the Participant, the
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Participant's beneficiary or estate, or to be security for the performance of
the obligations of the Company but shall be, and remain, a general, unpledged
and unrestricted asset of the Company.
4.02 Company Credits. For each Plan Year, the Company may, in its sole
discretion, make a credit to each Participant's Benefit Account in a dollar
amount equal to the amount of reduced matching contributions that would have
been contributed by the Company to the Compass Plan if the Participant had not
deferred Compensation under this Plan. The Company matching contribution credit
shall become non-forfeitable within the same time periods for vesting as
prescribed in the Compass Plan. Effective as of December 31, 2001, no additional
contributions shall be made to the Plan.
Article V
Participant Benefit Account and Vesting
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5.01 Benefit Account(s). The Company shall establish one or more Benefit
Accounts on its books for each Participant, and shall credit to each
Participant's Benefit Account the following amounts at the times specified:
(a) Retirement Deferrals. Effective as of December 31, 2001, no
additional deferrals shall be made to or under the Plan.
(b) Short-Term Deferrals. Effective as of December 31, 2001, no
additional deferrals shall be made to or under the Plan.
(c) Earnings Credited. For each Benefit Account, the earnings shall be
accrued monthly and compounded annually based on the applicable Interest
Yield for the Plan Year. If a Participant is paid out during the first Plan
Year of participation for any reason other than Termination of Employment
or death, all interest accrued shall be forfeited.
A Participant's Benefit Account shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to the Participant
pursuant to this Plan. A Participant's Benefit Account shall not constitute or
be treated as a trust fund of any kind. All benefits payable under this Plan
shall be paid as they become due and payable by the Company out of its general
assets.
5.02 Account Balance. Each Participant's Account Balance as of each
Determination Date shall consist of the balance of the Participant's Benefit
Account(s) as of the immediately preceding Determination Date plus the amounts
required to be credited to such Benefit Account(s) by the Company pursuant to
Section 5.01 less the amount of all distributions, if any, made from such
Benefit Account(s) since the immediately preceding Determination Date.
5.03 Non-Forfeiture of Benefit Account(s). Except as provided in Section
4.02 and 5.01(c), the Benefit Account(s) of a Participant shall be
non-forfeitable.
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Article VI
Payment of Benefits
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6.01 Payment of Benefits to Participant.
(a) Retirement Deferrals. Retirement Deferrals are payable upon a
Participant's Termination of Employment, or if later, such Participant's
attainment of age 55 unless the Participant has elected to defer payment
until attainment of age 65, provided such election is on file with the
Administrative Committee prior to the Plan Year of Termination of
Employment. The Retirement Deferral Account Balance shall be paid to the
Participant under the last payment method elected by the Participant and
filed with the Administrative Committee prior to the Plan Year in which
Termination of Employment occurs.
The Retirement Deferral benefit upon the benefit commencement date shall be
determined based upon the following: (1) the Retirement Deferral Benefit
Account as of such date, plus (2) the Interest Yield for Retirement
Deferrals for the Plan Year in which the benefit commencement date occurs
projected throughout the payout period.
Except as provided in Section 6.01, the payment methods for Retirement
Deferrals shall be determined from time to time by the Administrative
Committee and shall include a present value lump sum payment method or a
monthly payment method as elected by the Participant prior to the Plan Year
in which the Participant's Termination of Employment occurs.
(b) Short-Term Deferrals. The Short-Term Deferral Benefit Account
shall be payable in a lump sum within thirty (30) days after the date
designated by the Participant on the Withholding Request Form. The date of
payment shall be subject to the minimum deferral period designated on the
Withholding Request Form.
(c) Minimum Account Balance. Notwithstanding the provisions of Section
6.01(a) and Section 6.01(b), if at the time of Termination of Employment
the Participant is less than age 55 with an Account Balance of $25,000 or
less, or if the Participant is age 55 or older with an Account Balance of
$10,000 or less, an immediate lump sum payment of the Account Balance shall
be made as soon as practicable to the Participant in lieu of all other
benefit payment methods.
6.02 Death Benefits. If a Participant dies after Termination of Employment
but prior to commencement of benefits under Section 6.01, both the Retirement
Deferrals and the Short-Term Deferrals of such Participant shall be paid to such
Participant's Beneficiary as otherwise provided in the Plan. If a Participant
dies after Termination of Employment and after commencement of benefits under
Section 6.01, the provisions of Section 6.03 shall apply.
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6.03 Post-Termination Survivor Benefit. If the Participant dies after
Termination of Employment while receiving benefits pursuant to Section 6.01 but
before receiving all monthly payments he or she is entitled to receive, the
balance of such monthly payments shall be paid as they accrue to the
Participant's Beneficiary or in a present value lump such to the extent provided
pursuant to the Participant's Beneficiary designation form, and the estate of
such Beneficiary if the Beneficiary dies before receiving all payments.
6.04 Employment by a Successor Company. If the Participant terminates
employment with the Company in connection with the sale of a business unit in
which the Participant becomes employed by a Successor Company, (i) the
Participant's deferrals shall cease as of the date such Participant becomes
employed by the Successor Company and (ii) the Participant's Termination of
Employment for purposes of this Plan shall be deemed to occur when such
Participant's terminates employment with the Successor Company.
6.05 Company Obligations and Source of Payments. All benefits payable under
this Plan shall be paid as they become due and payable by the Company out of its
general assets, and shall constitute unsecured general obligations of the
Company. Any amounts in respect of such benefits set aside or held in a trust
shall remain general assets of the Company, subject to the claims of the
Company's general creditors in the event of the Company's insolvency. To the
extent that any person acquires a right to receive benefits under this Plan,
such rights shall be no greater than the right of any unsecured general creditor
of the Company.
6.06 Recipients of Payments Designation of Beneficiary. All payments to be
made by the Company shall be made to the Participant, if living. In the event of
a Participant's death prior to the receipt of all benefit payments, all
subsequent payments to be made under the Plan shall be to the Beneficiary or
Beneficiaries of the Participant. Each Participant shall file in writing with
the Company a designation of Beneficiary and contingent Beneficiary to whom the
Participant's interest under the Plan shall be paid in the event of death. The
initial designation of Beneficiary shall be made in the Participant's Adoption
Agreement. Such designation may be changed by the Participant at any time and
without the consent of any previously designated Beneficiary. In the absence of
an effective Beneficiary designation as to any portion of a Participant's
interest under the Plan or if the Beneficiary cannot be located, such amount
shall be paid to the Participant's personal representative. But if the Company
believes that none has been appointed within six months after the Participant's
death, the Company may direct that such amount shall not be paid until a
personal representative has been appointed or may direct that such amount be
paid to the Participant's surviving spouse, or if there is none, to the
Participant's surviving children and issue of deceased children by right of
representation, or if there be none, the Participant's surviving parents and if
none, according to the laws of descent and distribution of the State in which
the Participant is legally domiciled at the time of death. In the event a
benefit is payable to a minor or person declared incompetent or incapable of
handling the disposition of his or her property, the Administrative Committee
may pay such benefit to the guardian, legal representative or person having the
care or custody of such minor, incompetent or incapable person. The
Administrative Committee may require proof of incompetency, minority
guardianship as it may deem appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the Company from all liability with
respect to such benefit.
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6.07 Eligibility to Participate in the SPX Corporation Supplemental
Retirement Savings Plan. As a result of the acquisition of UDI by SPX, the
Account Balance, as of January 1, 2002, of each Participant who is eligible to
participate in the SPX Corporation Supplemental Retirement Saving Plan (the "SPX
SRSP"), shall be transferred to the SPX SRSP.
6.08 Non-Eligible Employees. As a result of the acquisition of UDI by SPX,
each employee who (a) has an Account Balance in the Plan and (b) is not eligible
to participate in the SPX SRSP, may make a one-time election to receive his
Account Balance in the form of a single lump sum payment payable as soon as
administratively feasible. If the employee does not make this election, his
Account Balance shall be transferred to the SPX SRSP.
Article VII
Administration
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7.01 Administrative Committee. The Plan shall be administered, interpreted
and enforced by the Administrative Committee in accordance with its terms and
purposes. Interpretation by the Administrative Committee shall be final and
binding upon a Participant and such Participant's Beneficiary except for the
procedure set forth in Section 7.02. No further appeal from a decision on review
shall be permitted. The Administrative Committee shall select the participating
Key Employees and determine the assumptions to be used in computing benefits
under the Plan, including the appropriate factors to be used in determining lump
sum present values as well as monthly annuity payments. The Administrative
Committee may adopt rules and regulations relating to the Plan as it may deem
necessary or advisable for the administration of the Plan. No member of the
Administrative Committee may act, vote or otherwise influence a decision of the
Administrative Committee specifically relating to his or her own participation
in the Plan. In the administration of this Plan, the Administrative Committee
may, from time to time, employ agents and delegate to them such administrative
duties as it sees fit and may, from time to time, consult with counsel who may
be counsel to the Participant.
7.02 Claim Procedures.
(a) All claims shall be filed in writing by the Participant, his or
her Beneficiary or the authorized representative of the claimant, by
completing such procedures as the Administrative Committee shall require.
Such procedures shall be reasonable and may include the completion of forms
and the submission of documents and additional information.
(b) If a claim is denied, notice of denial shall be furnished by the
Administrative Committee to the claimant within ninety (90) days after the
receipt of the claim by the Administrative Committee, unless special
circumstances require an extension of time for processing the claim, in
which event notification of the extension shall be provided to the
Participant or Beneficiary and the extension shall not exceed ninety (90)
days.
(c) The Administrative Committee shall provide adequate notice, in
writing, to any claimant whose claim has been denied, setting forth the
specific reasons for such denial, specific reference to pertinent Plan
provisions, a
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description of any additional material or information necessary for the
claimant to perfect his or her claim and an explanation of why such
material or information is necessary, all written in a manner calculated to
be understood by the claimant. Such notice shall include appropriate
information as to the steps to be taken if the claimant wishes to submit
his or her claim for further review. The claimant or the claimant's
authorized representative must request such review within a reasonable
period of time prescribed by the Administrative Committee. In no event
shall such period of time be less than sixty (60) days. A decision on
review shall be made not later than sixty (60) days after the Company's
receipt of the request for review. If special circumstances require a
further extension of time for processing, a decision shall be rendered not
later than one hundred twenty (120) days following the Company's receipt of
the request for review. If such an extension of time for review is
required, written notice of the extension shall be furnished to the
claimant prior to the commencement of the extension. The decision on review
shall be furnished to the claimant. Such decision shall be in writing and
shall include specific reasons for the decision, written in a manner
calculated to be understood by claimant, as well as specific references to
pertinent Plan provisions on which the decision is based.
Article VIII
Miscellaneous
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8.01 Employment Not Guaranteed by Plan. Neither the Plan nor any action
taken hereunder shall be construed as giving a Participant the right to be
retained as a Key Employee or as an employee of the Company for any period.
8.02 Amendment and Termination. UDI may at any time amend or terminate the
Plan on behalf of itself and its participating Subsidiaries and Affiliates.
8.03 Assignment of Benefits. No Participant or Beneficiary shall have the
right to assign, transfer, hypothecate, encumber or anticipate his or her
interest in any benefits under this Plan, nor shall the benefits under the Plan
be subject to any legal process to levy upon or attach the benefits for payment
of any claim against the Participant or his or her Beneficiary. In the event of
any attempted assignment or transfer, the Company shall have no further
liability hereunder.
8.04 Disposition of Unclaimed Payments. Each Participant must file with the
Company from time to time, in writing, his or her post office address and each
change of post office address. The communication, statement or notice addressed
to a Participant at the last post office address filed with the Company, or if
no address is filed with the Company, then at the last post office address as
shown on the Company records, will be binding upon the Participant and his or
her Beneficiaries for all purposes of the Plan. The Company shall not be
required to search for or locate a Participant or his or her Beneficiary.
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8.05 Taxes. The Company shall deduct from all deferral and benefit payments
made hereunder all applicable federal or state taxes required by law to be
withheld from such payments.
8.06 Independence of Benefits. The benefits payable under the Plan shall be
independent of, and in addition to, any other benefits or compensation whether
by salary or bonus.
8.07 Governing Law. This Plan is intended to constitute an unfunded Plan
for a select group of management or highly compensated employees and directors
and rights thereunder shall be governed by the laws of the State of North
Carolina, except to the extent preempted by Federal law.
8.08 Form of Communication. Any election, application, claim, notice or
other communication required or permitted to be made by a Participant to the
Administrative Committee shall be made in writing and in such form as the
Administrative Committee shall prescribe. Such communication shall be effective
upon mailing, if sent by first class mail, postage pre-paid, and addressed to
the Company's offices at 2300 Wachovia Center, 301 College Street, Charlotte,
North Carolina, 28202-6039.
8.09 Severability. If any provision of this Plan is held to be illegal,
invalid or unenforceable under the present or future laws, such provision shall
be fully severable; this Plan shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this
Plan, and the remaining provisions of this Plan shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Plan. Furthermore, in lieu of each such
illegal, invalid or unenforceable provision, there shall be added automatically
as part of this Plan a provision as similar in terms to such illegal, invalid or
unenforceable provisions as may be possible and be legal, valid or enforceable.
8.10 Binding Agreement. The provisions of this Plan shall be binding upon
the Participant and the Company and their successors, assigns, heirs, executors
and beneficiaries.
[Signature on the next page]
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Executed by UDI effective as of the 24th day of May, 2001.
United Dominion Industries, Inc.
/s/ Robert B. Foreman
------------------------------------------
Robert B. Foreman
Chairman of the SPX Corporation Retirement
and Welfare Plans Administrative Committee
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