Exhibit 10.9


 


EMPLOYMENT AGREEMENT


(John A. Fluss)


 


This EMPLOYMENT AGREEMENT, dated as of December 1, 2007
(this “Agreement”), is by and between MYR
Group Inc., a Delaware corporation (the “Company”), and
John A. Fluss (the “Key Employee”).  This Agreement shall become effective upon
the closing of the offering and sale of equity securities by the Company (the “Effective Date”) pursuant to a Purchase/Placement Agreement
to be entered into by and between the Company and Friedman, Billings, Ramsey &
Co., Inc. (the “Financing”); provided,
that this Agreement shall be null and void, and of no force or effect, if such
closing does not occur within ninety (90) days after the date hereof.


 


W
I T N E S S E T H:


 


WHEREAS, the Company has identified Key
Employee as an integral part of the Company’s operation and management; and


 


WHEREAS, the Company recognizes Key Employee’s
efforts and desires to reward those efforts to protect and enhance the best
interests of the Company.


 


NOW, THEREFORE, in consideration of the foregoing
and of the respective covenants and agreements set forth below, the parties
hereto agree as follows:


 


ARTICLE I

DEFINITIONS AND INTERPRETATIONS


 


1.1          Definitions.


 


(a)                                  “Base Salary” means the Key Employee’s base salary as in
effect from time to time, as described in Section 2.3(a).


 


(b)                                 “Board” means the Board of Directors of the Company.


 


(c)                                  “Cause” means:


 


(i)                                     A
material breach by Key Employee of Sections 3.9(d), (e) or (f) of
this Agreement (regarding the noncompetition provisions);


 


(ii)                                  The
commission of a criminal act by Key Employee against the Company, including but
not limited to fraud, embezzlement or theft;


 


(iii)                               The
conviction or plea of no contest or nolo contendere of Key Employee for any
felony or any crime involving moral turpitude; or


 


(iv)                              Key
Employee’s failure or refusal to carry out, or comply with, in any material
respect, any lawful directive of the Board consistent with the terms of the
Agreement which is not remedied within thirty (30) days after Key Employee’s
receipt of written notice from the Company.


 


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Notwithstanding
the foregoing, Key Employee shall not be deemed to have been terminated for
Cause pursuant to this Section 1.1(c) unless and until there
shall have been delivered to him a copy of a resolution duly adopted by at
least seventy-five percent (75%) of the entire membership of the Board (not
including for this purpose Key Employee if Key Employee is then a member of the
Board) at a meeting of the Board called and held for such purpose (after
reasonable notice to Key Employee and a reasonable opportunity for him,
together with his counsel, to be heard before the Board), finding that in the
good faith opinion of the Board, Key Employee engaged in conduct set forth in
this Section 1.1(c).


 


(d)                                 “Change in Control” means the occurrence of a “change in the
ownership of the Company,” a “change in the effective control of the Company,”
or a “change in the ownership of a substantial portion of the Company’s assets,”
as defined in Treasury Regulation §§1.409A-3(i)(5)(v), (vi) and (vii),
respectively.


 


(e)                                  “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended.


 


(f)                                    “Code” means the Internal Revenue Code of 1986, as amended.


 


(g)                                 “Disability” means that, 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 months, Key Employee is unable to engage in any substantial gainful
activity or is receiving income replacement benefits under an accident and
health plan covering employees of the Company for a period of not less than
three months.


 


(h)                                 “Good Reason” means:


 


(i)                                     a
reduction of Key Employee’s Base Salary and/or annual target bonus opportunity
without Key Employee’s consent,


 


(ii)                                  a
material reduction of Key Employee’s duties (without the Key Employee’s
consent) from those in effect as of the Effective Date or as subsequently
agreed to by Key Employee and the Company for which Key Employee shall have
given the Company written notice of such breach and the Company shall have
failed to cure such breach within thirty (30) days after receipt of such
notice,


 


(iii)                               the
relocation of the Key Employee’s primary work site to a location greater than
fifty (50) miles from the Key Employee’s work site as of the Effective Date, or


 


(iv)                              any
other material breach by the Company of a material provision of this Agreement
for which Key Employee shall have given the Company written notice of such
breach and the Company shall have failed to cure such breach within thirty (30)
days after receipt of such notice.


 


(i)                                     “Post-Termination Period” means the period beginning on the
date that Key Employee’s employment terminates and ending on the first
anniversary of such date; provided, however, that with respect to a termination
without Good Reason, such period shall 


 


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begin on the
date that Key Employee’s employment terminates and end on the six-month
anniversary of such date.


 


(j)                                     “Protection Period” means the period beginning on the date of
the occurrence of a Change in Control and ending 12 months following the
occurrence of a Change in Control.


 


(k)                                  “Severance Pay” means


 


(i)                                     one-half
(1/2) the sum of Key Employee’s annual Base Salary and Target Bonus as of the
date of his termination of employment, in the case of a termination by Key
Employee without Good Reason, whether or not during the Protection Period;


 


(ii)                                  two
(2) times the sum of Key Employee’s annual Base Salary and Target Bonus as
of the date of his termination of employment, in the case of a termination
Without Cause outside the Protection Period or a termination by Key Employee
with Good Reason outside the Protection Period; and


 


(iii)                               three
(3) times the sum of Key Employee’s annual Base Salary and Target Bonus as
of the date of his termination of employment, in the case of a termination
Without Cause during the Protection Period or a termination by Key Employee for
Good Reason during the Protection Period.


 


(l)                                     “Severance Period” means


 


(i)                                     the
six (6) month period following the date of his termination of employment,
in the case of a termination by Key Employee without Good Reason, whether or
not during the Protection Period; and


 


(ii)                                  the
two (2) year period following the date of his termination of employment,
in the case of a termination Without Cause or a termination by Key Employee for
Good Reason, whether or not during the Protection Period.


 


(m)                               “Without Cause” means termination by the Company of Key
Employee’s employment at the Company’s sole discretion for any reason, other
than by reason of Key Employee’s death or Disability, and other than a
termination based upon Cause.


 


1.2                               Interpretations.  In this Agreement, unless a clear contrary
intention appears, (a) the words “herein,” “hereof” and “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; (b) reference to
any Article or Section, means such Article or Section hereof;
and (c) the word “including” (and with correlative meaning “include”)
means including, without limiting the generality of any description preceding
such term.


 


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ARTICLE II

EMPLOYMENT AND DUTIES


 


2.1                               Term.  The term of this Agreement shall be three (3) years
commencing on the Effective Date of this Agreement (the “Initial Term”),
provided, however, that the Agreement shall automatically be extended for an
additional one-year period at the end of the Initial Term and each one-year
anniversary thereafter (each a “Renewal Term”
and together with the Initial Term being referred to herein as the “Employment Term”), unless not later than one-hundred eighty
(180) days prior to the end of the then-current period, either Key Employee or
the Company shall have provided written notice to the other party that it does
not wish to extend the Agreement.


 


2.2                               Position,
Duties and Services.  The Key
Employee shall serve in the position of Group Vice President and shall have
duties and responsibilities consistent with an executive serving in such
capacity.  The Key Employee shall perform
such duties and responsibilities diligently and to the best of his abilities.  The Key Employee’s employment will be subject
to the supervision and direction of the Chief Executive Officer of the Company
and the Board.


 


2.3                               Compensation.


 


(a)                                  Base
Salary.  Key Employee shall receive
an initial Base Salary at the rate of two hundred thirty thousand fifty dollars
($230,050) per annum payable in periodic installments in accordance with the
Company’s normal payroll practices and procedures, which Base Salary may be
increased (but not decreased) by the Board or (a committee thereof) from time
to time.


 


(b)                                 Target
Bonus.  During the Employment Term,
Key Employee shall be eligible to receive an annual target bonus (the “Target
Bonus”) equal to fifty percent (50%) of Executive’s Base Salary, based on the
achievement of annual performance objectives, as determined by the Board (or a
committee thereof) in its discretion.


 


(c)                                  Incentive,
Savings, Profit Sharing, and Retirement Plans.  During the Employment Term, Key Employee
shall be entitled to participate in all incentive, savings, profit sharing and
retirement plans, practices, policies and programs applicable generally, from
time to time, to other similarly situated employees of the Company.


 


(d)                                 Welfare
Benefit Plans.  During the Employment
Term, Key Employee and/or Key Employee’s family, as the case may be, shall be
eligible for participation in and will receive all benefits under the welfare
benefit plans, practices, policies and programs applicable generally, from time
to time, to other similarly situated employees of the Company.


 


2.4                               Severance
Benefit.  Key Employee shall be
entitled to receive the severance benefits described in ARTICLE III
upon his termination of employment during the Employment Term, provided he
satisfies the requirements outlined in ARTICLE III.  Notwithstanding anything in this Agreement to
the contrary, for all purposes of this Agreement, Key Employee shall not be
deemed to have incurred a termination of employment unless Key Employee has
incurred a “separation from service” as defined in Treasury Regulation
§1.409A-1(h).


 


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2.5                               Indemnification.  The Company shall (i) indemnify, hold
harmless and defend Key Employee to the extent permitted under applicable law
from and against reasonable costs, including reasonable attorneys fees,
incurred by him in connection with or arising out of any acts or decisions made
by Key Employee in the course and scope of his employment hereunder and (ii) pay
all reasonable expenses and reasonable attorney’s fees actually incurred by Key
Employee in connection with or relating to the defense of any claim, action,
suit or proceeding by any third party against Key Employee arising out of or
relating to any acts or decisions made by Key Employee in the course and scope
of his employment hereunder; provided, however, that such indemnification shall
not apply with respect to the commission of a criminal act or any gross
misconduct by Key Employee.  This Section 2.5
shall survive the termination or expiration of this Agreement.


 


ARTICLE III

EARLY TERMINATION


 


3.1                               Death.  Upon the death of Key Employee during the
Employment Term, the Agreement shall terminate and Key Employee’s estate shall
be entitled to payment of his Base Salary through the date of such termination
plus any compensation and benefits payable pursuant to the terms of the
compensation and benefit plans specified in Section 2.3 in which
Key Employee is a participant.


 


3.2                               Disability.  In the event of Key Employee’s Disability
during the Employment Term, the Agreement and Key Employee’s employment with
the Company shall terminate and Key Employee shall be entitled to payment of
the following benefits:  (a) his
Base Salary through the date of such termination; (b) long-term disability
benefits pursuant to the terms of any long-term disability policy provided to
similarly situated employees of the Company in which Key Employee is a
participant; and (c)  any compensation and benefits payable pursuant to
the terms of the compensation and benefit plans specified in Section 2.3
in which Key Employee is a participant.


 


3.3                               Termination
for Cause by Company.  If Key
Employee’s employment is terminated during the Employment Term for Cause, the
Company shall pay Key Employee through the date of termination (a) his
Base Salary in effect at the time notice of termination is given and (b) 
any compensation and benefits payable pursuant to the terms of the compensation
and benefit plans specified in Section 2.3 in which Key Employee is
a participant.


 


3.4                               Termination
Without Good Reason by Key Employee. 
If Key Employee terminates his employment with the Company during the
Employment Term without Good Reason, whether or not during the Protection
Period, Key Employee shall be entitled to (a) his unpaid Base Salary
through the date of termination; (b) any compensation and benefits payable
pursuant to the terms of the compensation and benefit plans specified in Section 2.3
in which Key Employee is a participant; (c) a lump sum payment equal to
his Severance Pay, and (d) during the Severance Period, Company-paid
benefit continuation coverage, on an insured or uninsured basis as determined
by the Company in its sole discretion, concurrent with COBRA, for Key Employee
and his family under the welfare benefit plans specified in Section 2.3(d) in
which Key Employee is a participant, on the same basis as such benefits are
provided to active employees; provided, however, that if Key Employee breaches
the provisions of Section 3.9(b), 


 


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(d), (e) or (f) before the end of
the Severance Period, Key Employee shall forfeit the right to benefit
continuation coverage for the remainder of the Severance Period and, within
thirty (30) days of such breach, Key Employee shall be required to remit to the
Company a pro-rata portion of his Severance Pay, calculated as the product of (i) the
Severance Pay received by Key Employee upon his termination, times (ii) a
fraction, the numerator of which shall be the number of months from Key
Employee’s termination to the date of such breach and the denominator of which
shall be six (6) (the number of months in the Severance Period).  Notwithstanding anything to the contrary
herein, if Key Employee becomes re-employed by another employer during the
Severance Period, Key Employee shall provide written notice of such
re-employment to the Company within thirty (30) days of the commencement of
such new employment, at which time the Company-paid benefit continuation
coverage described herein shall be terminated and Key Employee shall be
required to remit to the Company a pro-rata portion of his Severance Pay,
calculated as the product of (i) the Severance Pay received by Key
Employee upon his termination, times (ii) a fraction, the numerator of
which shall be the number of months from Key Employee’s termination to the date
of such re-employment and the denominator of which shall be six (6).  Subject to Section 3.11, the
payment of any Severance Pay and the continuation of welfare benefit plan
coverage, as provided in Section 2.3(d), shall be made (or
commence) in the month immediately following the month in which the waiver and
release of claims described in Section 3.8 becomes non-revocable.


 


3.5                               Termination
Without Cause or for Good Reason Outside the Protection Period.  If, during the Employment Term and outside
the Protection Period, the Key Employee’s employment is terminated by the
Company Without Cause or Key Employee terminates his employment with the
Company for Good Reason, he shall be entitled to (a) his unpaid Base
Salary through the date of termination; (b)  any compensation and benefits
payable pursuant to the terms of the compensation and benefit plans specified
in Section 2.3 in which Key Employee is a participant; (c) a
lump sum payment equal to his Severance Pay; and (d) during the Severance
Period, Company-paid benefit continuation coverage, on an insured or uninsured
basis as determined by the Company in its sole discretion, concurrent with
COBRA, for Key Employee and his family under the welfare benefit plans
specified in Section 2.3(d) in which Key Employee is a participant,
on the same basis as such benefits are provided to active employees.  Notwithstanding anything to the contrary
herein, if Key Employee becomes re-employed by another employer during the
Severance Period, Key Employee shall provide written notice of such
re-employment to the Company within thirty (30) days of the commencement of
such new employment, at which time the Company-paid benefit continuation
coverage described herein shall be terminated. 
Subject to Section 3.11, the payment of any Severance Pay
and the continuation of welfare benefit plan coverage, as provided in Section 2.3(d),
shall be made (or commence) in the month immediately following the month in
which the waiver and release of claims described in Section 3.8
becomes non-revocable.


 


3.6                               Termination
Without Cause or for Good Reason During the Protection Period.  If, during the Employment Term and during the
Protection Period, Key Employee’s employment is terminated by the Company
Without Cause or Key Employee terminates his employment with the Company for
Good Reason, he shall be entitled to (a) his unpaid Base Salary through
the date of termination; (b) any compensation and benefits payable
pursuant to the terms of the compensation and benefit plans specified in Section 2.3
in which Key Employee is a participant; (c) a lump sum payment equal to
his Severance Pay; and (d) during the 


 


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Severance
Period, Company-paid benefit continuation coverage, on an insured or uninsured
basis as determined by the Company in its sole discretion, concurrent with
COBRA, for Key Employee and his family under the welfare benefit plans
specified in Section 2.3(d) in which Key Employee is a
participant, on the same basis as such benefits are provided to active employees.  Notwithstanding anything to the contrary
herein, if Key Employee becomes re-employed by another employer during the
Severance Period, Key Employee shall provide written notice of such
re-employment to the Company within thirty (30) days of the commencement of
such new employment, at which time the Company-paid benefit continuation
coverage described herein shall be terminated. 
Subject to Section 3.11, the payment of any Severance Pay
and the continuation of welfare benefit plan coverage, as provided in Section 2.3(d),
shall be made (or commence) in the month following the month in which the
waiver and release of claims described in Section 3.8 becomes
non-revocable.  In the event of Key
Employee’s termination under this Section 3.6, Key Employee shall not be
bound by the provisions of Section 3.9(b).


 


3.7                               Termination
of Company’s Obligations.  Upon
termination of Key Employee’s employment for any reason, the Company’s
obligations under this Agreement shall terminate and Key Employee shall be entitled
to no compensation and benefits other than that provided in this ARTICLE III.  Notwithstanding such termination, the parties’
obligations under Sections  2.5 and 3.9 of this Agreement shall
remain in full force and effect.


 


3.8                               Release.  Notwithstanding the foregoing provisions of
this ARTICLE III, Key Employee shall be entitled to the additional
benefits specified in Section 3.4 (regarding termination Without
Good Reason whether or not during the Protection Period), Section 3.5
(regarding termination Without Cause or for Good Reason outside the Protection
Period) and Section 3.6 (regarding termination Without Cause or for
Good Reason during the Protection Period) (i.e., those in
addition to the payment of his Base Salary through the date of termination and
any benefits payable pursuant to the terms of the compensation and benefit
plans specified in Section 2.3 in which Key Employee is a
participant), only upon his execution (and non-revocation) of a waiver and
release of all claims substantially in the form attached hereto, which
execution must occur before the forty-fifth (45th) day immediately
following the date of termination; provided, however, that in any case where
such forty-five (45) day period extends into December of any calendar
year, any payments required to be made to Key Employee that are treated as
deferred compensation for purposes of Section 409A shall be made no
earlier than January 1 of the following calendar year.


 


3.9                               Non-Competition;
Non-Solicitation; Confidentiality.


 


(a)                                  Key
Employee acknowledges and agrees that:  (i) the
Company is engaged in the business of power line and commercial/industrial
electrical construction services for electric utilities, telecommunication
providers, commercial/industrial facilities, and government agencies and
electrical construction and maintenance services for industrial and power
generation clients (the “Business”); (ii) the Business is intensely
competitive; (iii) Key Employee’s customer relationships are near
permanent and but for Key Employee’s association with the Company, Key Employee
would not have had contact with the customers; (iv) Key Employee will
continue to develop and have access to and knowledge of non-public information
of the Company and its clients; (v) the direct or indirect disclosure of
any such confidential 


 


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information to
existing or potential competitors of the Company would place the Company at a
competitive disadvantage and would do damage to the Company; (vi) Key
Employee has developed goodwill with the Company’s clients at the substantial
expense of the Company; (vii) but for Key Employee entering into the
covenants set forth in this Section 3.9, the Company would not have
entered into the Financing and the closing of the offering and sale of equity
securities by the Company as set forth above, (viii) Key Employee engaging
in any of the activities prohibited by this Section 3.9, would
constitute improper appropriation and/or use of the Company’s confidential
information and/or goodwill, (ix) Key Employee’s association with the
Company has been critical, and Key Employee’s association with the Company is
expected to continue to be critical, to the success of the Company, (x) the
services to be rendered by Key Employee to the Company are of a special and
unique character, (xi)  Company conducts
the Business throughout the United States, (xii) the noncompetition and other
restrictive covenants and agreements set forth in this Agreement are fair and
reasonable and it would not be reasonable to enter into the Financing without
obtaining such non-competition and other restrictive covenants and agreements,
and (xiii) in light of the foregoing and of Key Employee’s education, skills,
abilities and financial resources, Key Employee acknowledges and agrees that
the Key Employee will not assert, and it should not be considered, that
enforcement of any of the covenants set forth in this Section 3.9
would prevent Key Employee from earning a living or otherwise are void,
voidable or unenforceable or should be voided or held unenforceable.


 


(b)                                 Agreement
not to Compete.  Key Employee will
not, during his employment and the Post-Termination Period, directly or
indirectly, carry on or conduct, the Business or any business of the nature in
which the Company or its subsidiaries are then engaged in any geographical area
in which the Company or its subsidiaries or affiliates engage in business at
the time of such termination or any new line of business with respect to which
Key Employee has created, received or had access to confidential information
(as set forth below).  Key Employee
agrees that he will not so conduct or engage in the Business or any such
business in any capacity, including as an individual on his own account or as a
partner or joint venturer or as an employee, agent, consultant or salesman for
any other person or entity, or as an officer or director of a corporation, provided,
that Key Employee may be a shareholder in any public corporation if he does not
own ten percent (10%) or more of any class of its stock.


 


(c)                                  Confidential
Information.  Key Employee will not,
directly or indirectly, at any time following termination of his employment
with the Company for any reason, reveal, divulge or make known to any person or
entity, or use for Key Employee’s personal benefit (including for the purpose
of soliciting business, whether or not competitive with any business of the
Company or its subsidiaries or affiliates), any information acquired during the
Employment Term with regard to the financial, business or other affairs of the
Company or its subsidiaries or affiliates (including any list or record of
persons or entities with which the Company or its subsidiaries or affiliates
has any dealings), other than (i) information already in the public
domain; or (ii) information that Key Employee is required to disclose
under the following circumstances:  (A) at
the direction of any authorized governmental entity; (B) pursuant to a
subpoena or other court process; (C) as otherwise required by law or the
rules, regulations, or orders of any applicable regulatory body; or (D) as
otherwise necessary, in the opinion of counsel for Key Employee, to be
disclosed by Key Employee in connection with any legal action or proceeding
involving Key Employee in his capacity as an employee, officer, director, or
stockholder of the Company or any subsidiary or affiliate of the Company.


 


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(d)                                 Key
Employee will, upon the earlier of (i) any time requested by the Company
or (ii) termination of his employment with the Company for any reason,
promptly deliver to the Company all documents, memoranda, notes, reports,
lists, files, customer lists, mailing lists, software, disks, credit cards,
door and file keys, computer access codes, instructional manuals, and other
physical or personal property which Key Employee received or prepared or helped
to prepare in connection with his relationship with the Company including, but
not limited to, any confidential information (as set forth above) of the
Company or any of its subsidiaries and affiliates which he may then possess or
have under his control, and Key Employee shall not retain any copies,
duplicates, reproductions or excerpts thereof.


 


(e)                                  Agreement
not to Solicit.    During the Employment
Term and for the Post-Termination Period, Key Employee shall not (except on
behalf of or with the written consent of the Company), either directly or
indirectly, on Key Employee’s own behalf or in the service or on behalf of
others, (i) solicit, divert, or appropriate, or (ii) attempt to
solicit, divert, or appropriate, any person or entity that is or was a customer
of the Company or any of its affiliates at any time during the twelve (12)
months prior to the date of termination and with whom Key Employee has had
material contact.


 


(f)                                    Agreement
not to Recruit.  During the Employment
Term and for the Post-Termination Period, Key Employee shall not, either
directly or indirectly, on Key Employee’s behalf or in the service or on behalf
of others, (i) solicit, divert, or hire away, or (ii) attempt to
solicit, divert, or hire away, any employee of or consultant to the Company or
its subsidiaries or affiliates.


 


(g)                                 Reasonableness
of Restrictions.  Key Employee
acknowledges that the geographic boundaries, scope of prohibited activities,
and time duration set forth in this Section 3.9 are reasonable in
nature and are no broader than are necessary to maintain the goodwill of the
Company and the confidentiality of its confidential information and to protect
the legitimate business interests of the Company, and that the enforcement of
such provisions would not cause Key Employee any undue hardship nor
unreasonably interfere with Key Employee’s ability to earn a livelihood.  If any court determines that any portion of
this Section 3.9 is invalid or unenforceable, the remainder of this
Section 3.9 will not thereby be affected and will be given full
effect without regard to the invalid provisions.  If any court construes any of the provisions
of this Section 3.9, or any part thereof, to be unreasonable
because of the duration or scope of such provision, such court shall reduce the
duration or scope of such provision and enforce such provision as so reduced.


 


(h)                                 Enforcement.  Upon Key Employee’s employment with an entity
that is not a subsidiary or affiliate of the Company (a “Successor
Employer”) during the period that the provisions of this Section 3.9
remain in effect, Key Employee will provide such Successor Employer with a copy
of this Agreement and will notify the Company of such employment within thirty
(30) days thereof.  Key Employee agrees
that in the event of a breach or threatened breach of the terms and conditions
of this Section 3.9 by Key Employee, the Company will be entitled,
if it so elects, to institute and prosecute proceedings, either in law or in
equity, against Key Employee, to obtain damages for any such breach, or to
enjoin (in the form of specific performance, temporary restraining order,
temporary or permanent injunction or otherwise) Key Employee from any conduct
in violation of this Section 3.9, without having to post a bond.


 


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3.10                        Parachute
Payments.  Notwithstanding
anything to the contrary in this Agreement, if it is determined (as hereafter
provided) that any payment or distribution to or for Key Employee’s benefit,
whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise pursuant to or by reason of any other agreement,
policy, plan, program or arrangement, including without limitation any stock
option, stock appreciation right or similar right, or the lapse or termination
of any restriction on or the vesting or exercisability of any of the foregoing
(a “Payment”), would be subject to the excise tax imposed by Section 4999
of the Code (or any successor provision thereto) or to any similar tax imposed
by state or local law, or any interest or penalties with respect to such excise
tax (such tax or taxes, together with any such interest and penalties, are
hereafter collectively referred to as the “Excise Tax”), then Key
Employee shall be entitled to receive an additional payment or payments (a “Gross-Up
Payment”) in an amount such that, after payment by Key Employee of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.  For purposes of
determining whether any of the Payments will be subject to the Excise Tax and
the amount of such Excise Tax, (i) all of the Payments shall be treated as
“parachute payments” within the meaning of section 28OG(b)(2) of the Code,
and all “excess parachute payments” within the meaning of section 28OG(b)(1) of
the Code shall be treated as subject to the Excise Tax, unless in the opinion
of tax counsel selected by the Company’s independent auditors and reasonably
acceptable to Key Employee such other payments or benefits (in whole or in
part) do not constitute parachute payments, including by reason of section
28OG(b)(4)(A) of the Code, or such excess parachute payments (in whole or
in part) represent reasonable compensation for services actually rendered,
within the meaning of section 28OG(b)(4)(B) of the Code, in excess of the “base
amount” (as such term is defined in section 28OG(b)(3) of the Code)
allocable to such reasonable compensation, or are otherwise not subject to the
Excise Tax, (ii) the amount of the Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Payments or (B) the amount of excess parachute payments
within the meaning of section 28OG(b)(1) of the Code (after applying
clause (i), above), and (iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Company’s independent
auditors in accordance with the principles of sections 28OG(d)(3) and (4) of
the Code.  For purposes of determining
the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of Key Employee’s residence on the date of termination, net of the maximum
reduction in federal income taxes which could be obtained from deduction of
such state and local taxes.  In the event
that the Excise Tax is subsequently determined to be less than the amount taken
into account hereunder at the time of Key Employee’s termination of employment,
Key Employee shall repay to the Company, at the time that the amount of such
reduction in Excise Tax is finally determined, the portion of the Gross-Up
Payment attributable to such reduction (plus that portion of the Gross-Up
Payment attributable to the Excise Tax and federal, state and local income tax
imposed on the Gross-Up Payment being repaid by Key Employee to the extent that
such repayment results in a reduction in Excise Tax and/or a federal, state or
local income tax deduction) plus interest on the amount of such repayment at
the rate provided in section 1274(b)(2)(B) of the Code.  In the event that the Excise Tax is
determined to exceed the amount 


 


10

















 


taken into
account hereunder (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up Payment), the Company
shall make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by Key Employee with respect to such
excess) at the time that the amount of such excess is finally determined.  Key Employee and the Company shall each
reasonably cooperate with the other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for Excise
Tax with respect to the Severance Payments. 
Notwithstanding anything in this Agreement to the contrary, in no event
shall payments under this Section be made later than the end of Key
Employee’s taxable year following the taxable year in which the related Excise
Tax is remitted by or on behalf of the Key Employee.


 


3.11                        Payments
Subject to Section 409A of the Code.  Notwithstanding the foregoing provisions of
this ARTICLE III, to the extent required by Section 409A of
the Code and applicable guidance thereunder, payments that Key Employee would
otherwise be entitled to receive hereunder during the first six months
following the date of Key Employee’s termination of employment will be
accumulated and paid on the date that is six months and one day after the date
of Key Employee’s termination of employment (or if such payment date does not
fall on a business day of the Company, the next following business day of the
Company), or such earlier date upon which such amount can be paid without
adverse tax consequences to Key Employee under section 409A of the Code;
provided, however, that no such delay shall apply with respect to payments to
which Key Employee is entitled in the event of his death.


 


ARTICLE IV

MISCELLANEOUS


 


4.1          Governing Law.  This Agreement is governed by and will be
construed in accordance with the laws of the State of Illinois, without regard
to the conflicts of law principles of such State.


 


4.2          Amendment and
Waiver.  The
provisions of this Agreement may be amended, modified or waived only with the
prior written consent of the Company and Key Employee, and no course of conduct
or failure or delay in enforcing the provisions of this Agreement will be
construed as a waiver of such provisions or affect the validity, binding effect
or enforceability of this Agreement or any provision hereof.


 


4.3          Severability.  Any provision in this Agreement which is
prohibited or unenforceable in any jurisdiction by reason of applicable law
will, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.


 


4.4          Entire Agreement.  Except as provided in the written benefit
plans and programs referenced in Section 2.3(c) and Section 2.3(d),
this Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof
in any way.


 


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4.5          Withholding of
Taxes and Other Employee Deductions.  The Company may withhold from any benefits
and payments made pursuant to this Agreement all federal, state, city, and
other taxes as may be required pursuant to any law or governmental regulation
or ruling and all other normal employee deductions made with respect to the
Company’s employees generally.


 


4.6          Legal Fees.  The Company shall reimburse Key Employee for
all reasonable legal fees and expenses incurred by the Executive in a dispute
regarding the Key Employee’s rights under this Agreement, within forty-five
(45) day of when such fees and expenses are incurred, but in no event later
than the end of the taxable year in which such fees and expenses are incurred,
unless a court of competent jurisdiction determines the Key Employee’s position
in such dispute not to be bona fide.


 


4.7          Headings.  The paragraph headings have been inserted for
purposes of convenience and will not be used for interpretive purposes.


 


4.8          Actions by the
Board.  Any
and all determinations or other actions required of the Board (or a committee
thereof) hereunder that relate specifically to Key Employee’s employment by the
Company or the terms and conditions of such employment will be made by the
members of the Board or such committee other than Key Employee (if Key Employee
is a member of the Board or such committee), and Key Employee will not have any
right to vote or decide upon any such matter.


 


4.9          Construction.  The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.


 


[Signature Page Follows]


 


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INTENDING TO BE BOUND, the parties hereto have
executed this Agreement as of the date first set forth above.


 


 


	
   

  	
  COMPANY:

  	
   

  
	
   

  	
  MYR
  GROUP INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William A. Koertner

  
	
   

  	
  Name:

  	
  William A.
  Koertner

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KEY
  EMPLOYEE:

  	
   

  
				



 


	
   

  	
  /s/ John A. Fluss

  	
   

  
	
   

  	
  John A.
  Fluss