Exhibit 10.11


 


AMENDED AND RESTATED


 


EMPLOYMENT AGREEMENT

(John A. Fluss)


 


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 John
A. Fluss, (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 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 [ ] 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 


 


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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 


 


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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/ JOHN A. FLUSS

  
	
   

  	
   

  	
   

  
	
   

  	
  John A. Fluss

  
					



 


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[FORM OF RELEASE]


 


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