ek_empl.htm


    Exhibit 10.4

      EMPLOYMENT
AGREEMENT

       

      (Elliott
J. Kennedy)

       

      This
EMPLOYMENT AGREEMENT,
dated as of December 4, 2009 (this “Agreement”), is by and between
Orion Marine Group, Inc., a Delaware corporation (the “Company”), and Elliott J.
Kennedy (the “Key
Employee”).

       

      W
I T N E S S E T H:

       

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

       

      WHEREAS, the Company
recognizes your efforts as a Key Employee and desires to reward those efforts to
protect and enhance the best interests of the Company; and

       

      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,
INTERPRETATIONS, AND SPECIFIC CONSIDERATION

       

      1.1 Specific
Consideration.  As consideration for Key Employee executing
this Agreement, the Company will pay Key Employee a one-time signing bonus of
$15,000.00 within thirty days of Key Employee’s execution of this
Agreement.

       

      1.2 Definitions.

       

      (a) “Base Salary” means the Key
Employee’s base salary described in Section 2.3(a), as such
base salary may be increased (but not decreased) by the Company from time to
time.

       

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

       

      (c) “Cause” means:

       

      (i) A
material breach by Key Employee of Section 3.8 of this
Agreement (regarding the noncompetition and confidentiality
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, plea of no contest or nolo contendere, deferred adjudication or
unadjudicated probation 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 30 days after Key Employee’s receipt of written notice
from the Company.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      (d) “Change in Control” means the
occurrence of any of the following events:

       

      (i) A “change
in the ownership of the Company” which will occur on the date that any one
person, or more than one person acting as a group, acquires ownership of stock
in the Company that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of the Company; however, if any one person or more than one person
acting as a group, is considered to own more than 50% of the total fair market
value or total voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons will not be considered a “change
in the ownership of the Company” (or to cause a “change in the effective control
of the Company” within the meaning of Section 1.2(d)(ii) below)
and an increase of the effective percentage of stock owned by any one person, or
persons acting as a group, as a result of a transaction in which the Company
acquires its stock in exchange for property will be treated as an acquisition of
stock for purposes of this paragraph; provided, further, however, that for
purposes of this Section 1.2(d)(i), the
following acquisitions will not constitute a Change in
Control:  (A) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity controlled
by the Company or (B) any acquisition by investors (immediately prior to
such acquisition) in the Company for financing purposes, as determined by the
Committee in its sole discretion.  This Section 1.2(d)(i) applies
only when there is a transfer of the stock of the Company (or issuance of stock)
and stock in the Company remains outstanding after the transaction.

       

      (ii) A “change
in the effective control of the Company” which will occur on the date that
either (A) any one person, or more than one person acting as a group,
acquires (or has acquired during the 12 month period ending on the date of
the most recent acquisition by such person or persons) ownership of stock of the
Company possessing 35% or more of the total voting power of the stock of the
Company, except for (y) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity controlled
by the Company or (z) any acquisition by investors (immediately prior to
such acquisition) in the Company for financing purposes, as determined by the
Committee in its sole discretion or (B) a majority of the members of the
Board are replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Board prior to the
date of the appointment or election.  For purposes of a “change in the
effective control of the Company,” if any one person, or more than one person
acting as a group, is considered to effectively control the Company within the
meaning of this Section 1.2(d)(ii), the
acquisition of additional control of the Company by the same person or persons
is not considered a “change in the effective control of the Company,” or to
cause a “change in the ownership of the Company” within the meaning of Section 1.2(d)(i)
above.

       

      (iii) A “change
in the ownership of a substantial portion of the Company’s assets” which will
occur on the date that any one person, or more than one person acting as a
group, acquires (or has acquired during the 12 month period ending on the
date of the most recent acquisition by such person or persons) assets of the
Company that have a total gross fair market value equal to or more than 40% of
the total gross fair market value of all the assets of the Company immediately
prior to such acquisition or acquisitions.  For this purpose, gross
fair market value means the value of the assets of the Company, or the value of
the assets being disposed of, determined without regard to any liabilities
associated with such assets.  Any transfer of assets to an entity that
is controlled by the shareholders of the Company immediately after the transfer,
as provided in guidance issued pursuant to the Nonqualified Deferred
Compensation Rules, will not constitute a Change in Control.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      For
purposes of this Section 1.2(d), the
provisions of section 318(a) of the Code regarding the constructive
ownership of stock will apply to determine stock ownership; provided, that stock
underlying unvested options (including options exercisable for stock that is not
substantially vested) will not be treated as owned by the individual who holds
the option.  In addition, for purposes of this Section 1.2(d) and except
as otherwise provided in an Award agreement, “Company” includes (x) the
Company; (y) the entity for whom the Key Employee performs services; and
(z) an entity that is a stockholder owning more than 50% of the total fair
market value and total voting power (a “Majority Shareholder”) of the
Company or the entity identified in (y) above, or any
entity in a chain of entities in which each entity is a Majority Shareholder of
another entity in the chain, ending in the Company or the entity identified in
(y)
above.

       

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

       

      (f) “Disability” means a Key
Employee’s disability within the meaning of the Company’s long-term disability
plan.  In the event of a dispute between the parties as to whether the
Key Employee is disabled, whether Key Employee is disabled will be determined by
the mutual agreement of a physician selected by the Company or its insurers (the
“Company Physician”) and
a physician selected by Key Employee (“Key Employee’s
Physician”).  In the event that the Company Physician and Key
Employee’s Physician cannot agree on whether Key Employee is Disabled, such
determination will be made by a third physician who is jointly selected by the
Company Physician and Key Employee’s Physician.

       

      (g) “Good Reason”
means:

       

      (i) a
material breach of Section 2.3, including but not
limited to reduction of any component of Key Employee’s compensation set forth
in Section 2.3(a) or (b) without
Key Employee’s consent; provided, however, that a reduction of Key Employee’s
compensation set forth in 2.3(b) with respect to bonus shall mean the
elimination of Key Employee’s ability to earn a bonus or a reduction in the
percentage of Base Salary Key Employee is eligible to earn as a
bonus,

       

      (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, or

       

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

       

      (h) “Nonqualified Deferred Compensation
Rules” means the limitations or requirements of section 409A of the
Code and the regulations promulgated thereunder.

       

      (i) “Protection Period” means the
period beginning on the date that is three months prior to the occurrence of a
Change in Control and ending 12 months following the occurrence of a Change
in Control.

       

      (j) “Restricted Period” means
(i) if Key Employee is terminated for Cause or voluntarily resigns without
Good Reason, the twenty-four month period immediately following Employee’s last
day of employment under this Agreement; (ii) if Key Employee is terminated
without Cause or voluntarily resigns with Good Reason not during the Protection
Period, the twelve month period immediately following Employee’s last day of
employment under this Agreement; or (iii) if Key Employee is terminated
without Cause or voluntarily resigns with Good Reason during the Protection
Period, the twenty-four month period immediately following Employee’s last day
of employment under this Agreement.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      (k) “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.

       

      1.3 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.

       

      ARTICLE II

       

      EMPLOYMENT
AND DUTIES

       

      2.1 Term.  The term of this
Agreement will commence on the Effective Date of this Agreement and end on
September 30, 2011 (the “Initial Term”).  The
Agreement may be extended for an additional period at the end of the Initial
Term (“Renewal Term”)
upon the mutual agreement of the parties entered into at least 30 days
prior to the end of the Initial Term.

       

      2.2 Position,
Duties and Services.  The Key Employee
will have such duties and powers as will be determined from time to time by the
Board consistent therewith.  The Key Employee will perform diligently
and to the best of his abilities such duties.  The Key Employee’s
employment will be subject to the supervision and direction of the
Board.

       

      2.3 Compensation.

       

      (a) Base
Salary.  Key Employee will receive an initial Base Salary at
the rate of Two Hundred, Thirty-One Thousand Dollars ($231,000) 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 Company from time to time.

       

      (b) Bonuses and
Perquisites.  During the Employment Period, Key Employee will
be entitled to bonuses and perquisites as determined by the Board in its good
faith discretion.

       

      (c) Car
Allowance.  During the Employment Period, Key Employee will be
provided with a Company vehicle, subject to the Company’s policies and
procedures.

       

      (d) Incentive, Savings, Profit
Sharing, and Retirement Plans.  During the Employment Period,
Key Employee will 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.

       

      (e) Welfare Benefit
Plans.  During the Employment Term, Key Employee and/or Key
Employee’s family, as the case may be, will 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.

       

      (f) Expenses.  During
the Employment Period, Key Executive shall be entitled to receive reimbursement
for all reasonable business expenses, including, but not limited to, those
expenses expressly provided for in this Agreement, incurred by the Key Executive
in accordance with the policies, practices and procedures of the Company. All
such expenses are to be reimbursed to Key Executive in accordance with the
Company’s policies and procedures for reimbursing expenses, but in no event
shall any reimbursement payment be paid to Key Executive following the last day
of the calendar year following the calendar year in which the expense was
incurred. The amount of expenses for which Key Executive is eligible to receive
reimbursement during any calendar year shall not affect the amount of expenses
for which Key Executive is eligible to receive reimbursement during any other
calendar year during the term of this Agreement. Any reimbursement payable in
accordance with this Section 2.3(f) will not be subject to liquidation or
exchange for another benefit.

       

      2.4 Severance
Benefit.  Key Employee will
be entitled to receive the severance benefits described in ARTICLE III
upon his termination of employment during the term of this Agreement described
in Section 2.1 provided he
satisfies the requirements outlined in ARTICLE III.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      ARTICLE III

       

      EARLY
TERMINATION

       

      3.1 Death.  Upon the death of
Key Employee during the Employment Period, the Agreement will terminate and Key
Employee’s estate will be entitled to payment of his Base Salary through the
date of such termination plus any benefits accrued up to the date of his death
payable pursuant to the terms of the 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 term of this Agreement described in Section 2.1, the Company
may terminate Key Employee’s employment in which case this Agreement will
terminate and Key Employee will 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 has elected to participate; and (c) payment
of any benefits payable pursuant to the terms of the benefit plans specified in
Section 2.3 in which Key
Employee is a participant.

       

      3.3 Termination
for Cause or Voluntary Resignation by Key Employee Without Good
Reason.  If Key Employee’s
employment is terminated during the term of this Agreement for Cause or Key
Employee voluntarily resigns from the employment of the Company without Good
Reason, Key Employee will be entitled to receive (a) his Base Salary in
effect at the time notice of termination is given through the date of
termination, (b) payment of any benefits payable pursuant to the terms of
the benefit plans specified in Section 2.3 in which Key
Employee is a participant, and (c) reimbursement of any outstanding expense
eligible for reimbursement.

       

      3.4 Termination
Without Cause or for Good Reason Not During the Protection Period.  If, during the
term of this Agreement as described in Section 2.1, the Key
Employee’s employment is terminated by the Company Without Cause or Key Employee
terminates his employment with the Company for Good Reason, and Section 3.5 is not
applicable, Key Employee will be entitled to receive (a) Key Employee’s
unpaid Base Salary through the date of termination; (b) payment of any
benefits payable pursuant to the terms of the benefit plans specified in Section 2.3 in which Key
Employee is a participant; (c) reimbursement of any outstanding expenses
eligible for reimbursement in accordance with the Company’s policies and
practices; (d) continued payment of Key Employee’s Base Salary for a period of
twelve months, in accordance with the Company’s standard payroll practices;
(e) monthly payment for a period of twelve months of $2,500 to cover
transitional expenses; (f) monthly car allowance payment in the amount of
$600.00 per month for a period of twelve months; plus (g) a lump sum
payment equal to the most recent bonus awarded to Key Employee pursuant to the
Executive Incentive Plan (EIP) or any replacement plan.  The payments
and benefits described in this Section 3.4 shall begin or shall be paid, as
applicable to the form of payment described above for each payment or benefit,
to Key Employee within the sixty day period immediately following the Key
Employee’s termination of employment.

       

      3.5 Termination
Without Cause or for Good Reason During the Protection Period.  If, during the
term of this Agreement as described in Section 2.1, Key
Employee’s employment is terminated by the Company Without Cause or Key Employee
terminates his employment with the Company for Good Reason during the Protection
Period, Key Employee will be entitled to receive (a) Key Employee’s unpaid
Base Salary through the date of termination; (b) payment of any benefits
payable pursuant to the terms of the benefit plans specified in Section 2.3 in which Key
Employee is a participant; (c) reimbursement of any outstanding expenses
eligible for reimbursement in accordance with the Company’s policies and
practices; (d) a lump sum payment equal to twenty four months of Key
Employee’s Base Salary; (e) a lump sum payment equal to twenty four times
$2,500 to cover transitional expenses; (f) a lump sum payment equal
to  twenty four times $600.00 as a car allowance; plus (g) a lump
sum payment equal to two times the most recent bonus awarded to Key Employee
pursuant to the Executive Incentive Plan (EIP) or any replacement
plan.  The payments and benefits described in this Section 3.5 shall begin or shall be paid, as
applicable to the form of payment described above for each payment or benefit,
to Key Employee on the later to occur of (i) the sixtieth day immediately
following the Key Employee’s termination of employment, or (ii) the date of the
Change in Control.

       

      3.6 Termination
of Company’s Obligations.  Upon termination
of Key Employee’s employment for any reason, the Company’s obligations under
this Agreement will terminate and Key Employee will be entitled to no
compensation and benefits under this Agreement other than that provided in this
ARTICLE III.  Notwithstanding
such termination, the parties’ obligations under this ARTICLE III,
including Section 3.8, will remain
in full force and effect.

       

      3.7 Release.  Notwithstanding
the foregoing provisions of this Section 3.7, Key Employee
will be entitled to the additional benefits specified in Section 3.4 (regarding
termination Without Cause or for Good Reason not during a Protection Period) and
Section 3.5 (regarding
termination Without Cause or for Good Reason during a 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 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 in a form acceptable to the
Company.  The waiver and release document must be executed and
delivered to the appropriate Company representative on or before the fiftieth
day period immediately following Key Employee’s termination of
employment.

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      3.8 Non-Competition,
Confidentiality.

       

      (a) Agreement not to
Compete.  In consideration of the Company’s promise to provide
Key Employee with Confidential Information, as defined in Section 3.8(b), the other
mutual promises contained in this Agreement, and Key Employee’s employment with
the Company, and so as to enforce Key Employee’s promises regarding Confidential
Information contained in Section 3.8(b) of this
Agreement, Key Employee agrees that in the event his employment with the Company
is terminated for any reason whatsoever, Key Employee will not, during the
applicable Restricted Period (extended by any period of time during which Key
Employee is in violation of this Section 3.8), directly or
indirectly, carry on or conduct, in competition with the Company or its
subsidiaries or affiliates, any business of the nature in which the Company or
its subsidiaries or affiliates 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 in which any of them, prior to termination of Key
Employee’s employment, evidenced in writing, at any time during the six month
period prior to such termination, an intention to engage in such
business.  Key Employee agrees that he will not so conduct or engage
in any such business either as an individual on his own account or as a partner
or joint venturer or as an Key Employee, agent, consultant or salesman for any
other person or entity, or as an officer or director of a corporation or as a
shareholder in a corporation of which he will then own 10% or more of any class
of stock.

       

      (b) Confidential
Information.  The Company makes a binding promise not
conditioned upon continued employment to provide Key Employee with certain
Confidential Information above and beyond any Confidential Information Key
Employee may have previously received. Key Employee will not, directly or
indirectly, at any time following termination of his employment with the
Company, reveal, divulge or make known to any person or entity, or use for Key
Employee’s personal benefit (including, without limitation, for the purpose of
soliciting business, whether or not competitive with any business of the Company
or any of its subsidiaries or affiliates), any information acquired during the
Employment Period with regard to the financial, business or other affairs of the
Company or any of its subsidiaries or affiliates (including, without limitation,
any list or record of persons or entities with which the Company or any of its
subsidiaries or affiliates has any dealings), other than (i) information
already in the public domain; (ii) information of a type not considered
confidential by persons engaged in the same business or a business similar to
that conducted by the Company or its subsidiaries and affiliates; or
(iii) information that Key Employee is required to disclose under the
following circumstances:  (A) at the express 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 and the
Company or any subsidiary or affiliate of the Company in his capacity as an
employee, officer, director, or stockholder of the Company or any subsidiary or
affiliate of the Company.  Key Employee will, at any time requested by
the Company (either during or within two years after his employment with the
Company), promptly deliver to the Company all memoranda, notes, reports, lists
and other documents (and all copies thereof) relating to the business of the
Company or any of its subsidiaries and affiliates which he may then possess or
have under his control.

       

      (c) Reasonableness of
Restrictions.  Key Employee acknowledges that the geographic
boundaries, scope of prohibited activities, and time duration set forth in this
Section 3.8 are
reasonable in nature and are no broader than are necessary to maintain the
confidentiality and 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 3.8 is invalid or
unenforceable, the remainder of this Section 3.8 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 3.8, or any part
thereof, to be unreasonable because of the duration or scope of such provision,
such court will have the power to reduce the duration or scope of such provision
and to enforce such provision as so reduced.

       

      (d) 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 3.8 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 30 days
thereof.  Key Employee agrees that in the event of a breach of the
terms and conditions of this Section 3.8 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 Key Employee from any conduct
in violation of this Section 3.8.

       

      3.9 Parachute
Payments.  Notwithstanding
anything to the contrary in this Agreement, if Key Employee is a “disqualified
individual” (as defined in section 280G(c) of the Code), and the benefits
provided for in this ARTICLE III,
together with any other payments and benefits which Key Employee has the right
to receive from the Company would constitute a “parachute payment” (as defined
in section 280G(b)(2) of the Code), then the benefits provided hereunder
(beginning with any benefit to be paid in cash hereunder) will be reduced (but
not below zero) so that the present value of such total amounts and benefits
received by Key Employee will be $1.00) less than three times Key Employee’s
“base amount” (as defined in section 280G(b)(3) of the Code) and so that no
portion of such amounts and benefits received by Key Employee will be subject to
the excise tax imposed by section 4999 of the Code.  The
determination as to whether such a reduction in the amount of the benefits
provided hereunder is necessary will be made by the Board in good
faith.  If a reduced cash payment is made and through error or
otherwise that payment, when aggregated with other payments and benefits from
the Company used in determining if a “parachute payment” exists, exceeds $1.00
less than three times the Key Employee’s base amount, then Key Employee will
immediately repay such excess to the Company upon notification that an
overpayment has been made.  Nothing in this Section 3.9 will require
the Company to be responsible for, or have any liability or obligation with
respect to, Key Employee’s excise tax liabilities under section 4999 of the
Code.

       

      3.10 Payments
Subject to Section 409A of the Code.  Notwithstanding
the foregoing provisions of this ARTICLE III,
if the payment of any severance compensation or severance benefits under this ARTICLE III
would be subject to additional taxes and interest under section 409A of the
Code because the timing of such payment is not delayed as provided in
section 409A(a)(2)(B) of the Code, then any such payments that Key Employee
would otherwise be entitled to 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 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 under section 409A of the Code without
being subject to such additional taxes and interest.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      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
Texas, 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(d) and Section 2.3(e), 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.  For the avoidance of doubt, this Agreement does not supersede or
preempt any understanding, agreement or representation regarding stock, stock
options, or other equity interests.

       

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

       

      4.7 Actions
by the Board.  Any and all
determinations or other actions required of the Board 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 other
than Key Employee (if Key Employee is a member of the Board), and Key Employee
will not have any right to vote or decide upon any such matter.

       

      4.8 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]

       


      
        
          
            Austin
814324v.2                                                                     

          

           


        

        
           


          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first set forth
above.

       

      COMPANY:

      


      ORION MARINE GROUP, INC.

      


      


      


      By:             /s/ J. Michael Pearson

      Name:             J. Michael
Pearson                                                              

      Title:             President &
CEO                                                              

      


      


      KEY EMPLOYEE:

      


                               /s/ Elliott
J. Kennedy

                               December 15,
2009


      


      



      
        
          
            Signature
Page to

            Employment
Agreement

            (Elliott
J. Kennedy)