Exhibit 10.13


 


AMENDED
AND RESTATED


 


EMPLOYMENT
AGREEMENT

(Marco A. Martinez)


 


This AMENDED AND RESTATED EMPLOYMENT AGREEMENT,
dated as of December 31, 2008 (this “Agreement”), is
by and between MYR Group Inc., a Delaware corporation (the “Company”), and Marco A. Martinez, (the “Key Employee”).


 


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.


 


WHEREAS, the Company and the Key Employee
entered into an employment agreement dated as of December 1, 2007 (the “Original Agreement”); and


 


WHEREAS,  the Original Agreement became effective December 20,
2007,  (the “Effective
Date”) which date was the date of closing of the offering and sale
of equity securities by the Company pursuant to a Purchase/Placement Agreement
to be entered into by and between the Company and Friedman, Billings, Ramsey &
Co., Inc. (the “Financing”);
and


 


WHEREAS, the Company and the Key Employee
desire to amend and restate the Original Agreement to obtain or preserve
compliance with, or exemption from Section 409A of the Internal Revenue
Code of 1986, as amended;


 


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;


 


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(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.


 


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 benefit 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


 


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(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 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) 


 


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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 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
Vice President, Chief Financial Officer and Treasurer 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 [
] dollars [($ )] 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”) 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.


 


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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.  Payment of Base Salary through the date of
termination and the payment of any other cash compensation to which the Key
Employee is entitled under this Agreement that is not exempt from Code Section 409A
shall be made in a lump sum payment as soon as administratively reasonable but
not later than ninety (90) days following the date of Key Employee’s death.


 


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. 
Subject to Section 3.12(a), the payment of Base Salary
through the date of termination and the payment of any other cash compensation
to which the Key Employee is entitled under this Agreement that is not exempt
from Code Section 409A shall be made in a lump sum payment as soon as
administratively reasonable but not later than ninety (90) days following the
date of Key Employee’s termination. 
Subject to Section 3.12(a) and Section 3.12(b),
reimbursements or in-kind benefits to which the Key Employee is entitled that
are not exempt from Code Section 409A shall be paid as soon as
administratively reasonable following the date of payments as set forth in this
Agreement, or the applicable plan, practice, policy or program.


 


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 at the applicable payment date under the Company’s regular
and customary payroll 


 


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practices 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.  Subject to Section 3.12(a),
the payment of Base Salary through the date of termination, the payment of
Severance Pay and the payment of any other cash compensation to which the Key
Employee is entitled under this Agreement that is not exempt from Code Section 409A
shall be made in a lump sum payment as soon as administratively reasonable but
not later than ninety (90) days following the date of Key Employee’s
termination.  Subject to Section 3.12(a) and
Section 3.12(b), reimbursements or in-kind benefits to which the
Key Employee is entitled that are not exempt from Code Section 409A shall
be paid as soon as administratively reasonable following the date of payments
as set forth in this Agreement, or the applicable plan, practice, policy or
program.  Provided, however, that if Key
Employee breaches the provisions of Section 3.9(b), (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 


 


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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. Subject to Section 3.12(a), the payment
of Base Salary through the date of termination, the payment of Severance Pay
and the payment of any other cash compensation to which the Key Employee is
entitled under this Agreement that is not exempt from Code Section 409A
shall be made in a lump sum payment as soon as administratively reasonable but
not later than ninety (90) days following the date of Key Employee’s
termination.  Subject to Section 3.12(a) and
Section 3.12(b), reimbursements or in-kind benefits to which the
Key Employee is entitled that are not exempt from Code Section 409A shall
be paid as soon as administratively reasonable following the date of payments
as set forth in this Agreement, or the applicable plan, practice, policy or
program. Notwithstanding anything to the contrary herein, if Key Employee
becomes reemployed 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 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. Subject to Section 3.12(a), the payment of Base Salary
through the date of termination, the payment of Severance Pay and the payment
of any other cash compensation to which the Key Employee is entitled under this
Agreement that is not exempt from Code Section 409A shall be made in a
lump sum payment as soon as administratively reasonable but not later than
ninety (90) days following the date of Key Employee’s termination.  Subject to Section 3.12(a) and
Section 3.12(b), reimbursements or in-kind benefits to which the
Key Employee is entitled that are not exempt from Code Section 409A shall
be paid as soon as administratively reasonable following the date of payments as
set forth in this Agreement, or the applicable plan, practice, policy or
program. Notwithstanding anything to the contrary herein, if Key Employee
becomes reemployed 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 


 


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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.


 


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 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


 


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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.


 


(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


 


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(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.


 


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 


 


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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 280G(b)(2) of the Code, and all “excess parachute payments” within
the meaning of section 280G(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 280G(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
280G(b)(4)(B) of the Code, in excess of the “base amount” (as such term is
defined in section 280G(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 280G(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
280G(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 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



 


11

















 


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                        Benefit
Coverage under Health Benefit Plans.


 


(a)                                  If
providing health benefit coverages through a welfare benefit plan as required
by Section 3.5 or Section 3.6 would cause the plan to violate section
105(h) of the Code, then the Company shall provide the coverage through
the Company’s welfare benefit plan on an after-tax basis.


 


(b)                                 In
the event the Company provides the coverage to the Key Employee on an after-tax
basis, then the Key Employee shall be entitled to receive an additional payment
or payments (a “Health Plan Gross-Up Payment”) in an amount such that,
after payment by Key Employee of all after-tax amounts paid by the Key Employee
(if any) and all taxes (including any interest or penalties imposed with
respect to such taxes) resulting from such after-tax treatment, Key Employee is
in the same position in respect of such coverages as though such coverages were
provided as required by Section 3.5 or Section 3.6.  For purposes of determining the amount of the
Health Plan 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 Health Care 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. 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 taxes are remitted by or on behalf of the Key
Employee.


 


3.12                        Payments
Subject to Section 409A of the Code.


 


(a)                                  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.


 


(b)                                 Any
reimbursement of expenses or in-kind benefits provided under this Agreement,
that is subject to and not exempt from Section 409A, shall be subject to
the following additional rules:  (i) any
reimbursement of eligible expenses shall be paid as they are incurred (but not
prior to the end of the six-month delay period set forth in Section 3.12(a);
provided that the Key Employee first provides documentation thereof in
reasonable detail not later than sixty (60) days following the end of the
calendar year in which the eligible expenses were incurred; (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits 


 


12

















 


provided,
during any calendar year shall not affect the amount of expenses eligible for
reimbursement, or in-kind benefits to be provided, during any other calendar
year; and (iii) the right to reimbursement or in-kind benefits shall not
be subject to liquidation or exchange for another benefit.


 


(c)                                  For
purposes of determining a Key Employee’s entitlement to payment of any cash or
other remuneration which is deferred compensation under Section 409A, any
provision of this Agreement providing for payment of any such cash or
remuneration upon “termination,” “termination of employment” or other event
which is a termination of an employment relationship with the Company means
that such payment is to be made upon a “Separation from Service” (as such term
is defined in Treasury regulations issued under Code Section 409A), with
the Company and all of its subsidiaries and affiliates, for any reason,
including without limitation, quit, discharge and retirement, and the Company
and the Key Employee reasonably anticipate that no further services will be
performed after such date or that the level of bona fide services performed
after such date (whether as an employee or as an independent contractor) will
permanently decrease to no more than twenty percent (20%) of the average level
of bona fide services performed (whether as an employee or an independent
contractor) over the immediately preceding 36-month period (or the full period
of services if the Key Employee has been providing services for less than 36
months).


 


(d)                                 It
is intended that the payments and benefits provided under this Agreement shall
either be exempt from application of, or comply with, the requirements of Section 409A
of the Code.  This Agreement shall be
construed, administered, and governed in a manner that affects such intent, and
the Company shall not take any action that would be inconsistent with such
intent.  Without limiting the foregoing,
the payments and benefits provided under this Agreement may not be deferred,
accelerated, extended, paid out, or modified in a manner that would result in
the imposition of an additional tax under Section 409A of the Code.  Although the Company shall use its best
efforts to avoid the imposition of taxation, interest and penalties under Section 409A
of the Code, the tax treatment of the benefits provided under this Plan is not
warranted or guaranteed.  The Company
shall not be held liable for any taxes, interest, penalties, or other monetary
amounts owed by you or other taxpayers as a result of the Agreement.


 


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.


 


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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.


 


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/ GERALD
  B. ENGEN, JR.

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Gerald B.
  Engen, Jr.

  
	
   

  	
  Title:

  	
  Vice
  President, Chief Legal Officer and Secretary

  
	
   

  	
   

  
	
   

  	
  KEY
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ MARCO A.
  MARTINEZ

  
	
   

  	
   

  
	
   

  	
  Marco A.
  Martinez

  



 


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[FORM OF
RELEASE]


 


16