Exhibit 10.1
Amended and Restated MYR Group
Inc. 2006 Stock Option Plan
As Amended May 12,
2009
1.
Purpose
The purpose of the MYR Group Inc.
2006 Stock Option Plan (the “Plan”) is to assist MYR
Group Inc. (the “Company”) and its Affiliated Companies
in attracting and retaining individuals of outstanding ability to
serve as employees in positions of responsibility, and to provide
them with incentives that will motivate and reward their efforts
and contributions towards the success of the Company and its
Affiliated Companies.
2.
Definitions
As used herein, the following terms
shall have the following meanings:
“Affiliated
Companies” shall
mean each direct or indirect subsidiary of the Company.
“Board of
Directors” shall
mean the Board of Directors of the Company.
“Cause”
shall mean, in the event of an
existing employment agreement between and Eligible Employee and the
Company or any of its Affiliated Companies “Cause” as
defined in such employment agreement, and in the absence of any
employment agreement between an Eligible Employee and the Company
or any of its Affiliated Companies otherwise defining such term,
(i) the Eligible Employee’s failure or refusal, in any
material respect, to perform his or her duties or responsibilities
to the Company or any of its Affiliated Companies, or is materially
negligent in the performance of those duties, as determined in good
faith by three-fifths of the members of Board of Directors (after
notice to the Eligible Employee and providing the Eligible Employee
an opportunity to meet with the Board of Directors), (ii) the
Eligible Employee’s conviction of or indicted (or its
procedural equivalent) for, or entering a guilty plea or a plea of
no contest with respect to, a felony, the equivalent thereof, or
any other crime with respect to which imprisonment is a possible
punishment, or (iii) the Eligible Employee’s material breach
of any provision of any employment agreement between the Eligible
Employee and the Company or any of its Affiliated
Companies.
“Change in
Control” shall mean
the occurrence of any one of the following events:
(i)
there is consummated a merger or consolidation of the Company with
any other corporation or other entity, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving or parent entity) more than
50% of the combined voting power of the voting securities of the
Company or such surviving or parent entity outstanding immediately
after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) as a result of which no Person,
directly or indirectly, will acquire 50% or more of the combined
voting power of the Company’s then outstanding securities;
or
(ii)
the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement for
the sale or disposition by the Company of all or substantially all
of the Company’s assets (or any transaction having a similar
effect), other than a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity, at
least 50% of the combined voting power of the voting securities of
which are owned by stockholders of the Company in substantially the
same proportions as their ownership of the Company immediately
prior to such sale.
For purposes of (i) above, the term
“Person” shall mean a Person as defined in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended, as
modified and used in Sections 13(d) and 14(d)(2) thereof, except
that such term shall not include (i) any shareholder of the Company
or parent of such shareholder, (ii) the Company or any of its
Affiliated Companies, (iii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its Affiliated Companies, (iv) an underwriter temporarily holding
securities pursuant to an offering of such securities or (v) a
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of Shares of the Company.
“Closing
Date” shall mean
March 10, 2006.
“Code”
shall mean the Internal Revenue
Code of 1986, as amended.
“ Date of Grant ”
shall mean, with respect to any Option, the date on which the Board
of Directors approves the grant of such Option, or such later date
as may be specified as the date of grant in the instrument
evidencing the grant of such Option.
“Eligible
Employee” shall
mean any employee of the Company or any of its Affiliated Companies
who, in the sole judgment of the Board of Directors, has made or is
expected to make significant contributions to the success of the
Company and its Affiliated Companies. An individual employed with
any entity other than the Company shall be treated as an Eligible
Employee only if such entity is a member of a group of corporations
or other entities that includes the Company which is treated as a
single “service recipient” for purposes of Treasury
regulation §1.409A-1(b)(5)(iii)(A) and (D) For such
purposes, the language “at least 50%” shall be used
instead of “at least 80%” each place it appears in
section 1563(a)(1), (2) and (3) of the Code and in Treas.
Reg.§1.414(c)-2.
“Fair Market
Value” shall mean
the value of a Share as determined by the Board of Directors (i)
using a valuation method that satisfies the valuation requirements
set forth in IRS Notice 2005-1, Q & A-4(d)(ii), for purposes of
determining the exercise price of any Option granted prior to
January 1, 2007, and (ii) using a valuation method that satisfies
the valuation requirements set forth in Treasury regulation
§1.409A-1(b)(5)(iv), for purposes of all other valuations of a
Share required to be made under the Plan.
“Internal Rate of
Return” shall mean,
as of any date of calculation, the internal rate of return realized
by the Purchaser on its equity investment in the Company, expressed
as the per annum discount rate at which the sum of the following
cash flows is equal to zero (assuming discounting on the basis of a
year of 365 days and actual days elapsed): (i) the aggregate
amount
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of (A) the purchase price paid by the Purchaser
for the Shares acquired by it from FirstEnergy Corp. on the Closing
Date, and (B) all amounts paid by the Purchaser to the Company
after the Closing Date for the issuance of additional Shares to the
Purchaser or as capital contributions to the Company (with each of
the amounts referred to in (A) and (B) treated as a negative amount
for purposes of any calculation hereunder), and (ii) the aggregate
amount of (C) the proceeds realized by the Purchaser upon each sale
of Shares held by it to one or more third parties unaffiliated with
the Purchaser, and (D) all dividends and other distributions
(including any distributions in liquidation or partial liquidation
of the Company or distributions by the Company of proceeds realized
by it on the sale of any of its assets) paid by the Company to the
Purchaser with respect to the Shares held by it. The Internal Rate
of Return shall be calculated using the “XIRR” function
in Microsoft Excel 2005 or an equivalent function in any other
software package approved by the Purchaser.
“Option”
shall mean an option to purchase
Shares granted under the Plan to an Eligible Employee.
“Option
Holder” shall mean
any person who, under the provisions of this Plan, holds one or
more Options granted to an Eligible Employee under the
Plan.
“Performance
Requirement” shall
mean (a) in the case of any Tranche of any Option granted during
2006, the Performance Requirement applicable to such Tranche under
Section 5(e)(ii); and (b) in the case of any Option, or Tranche of
any Option, granted after December 31, 2006, any requirement based
on the Purchaser’s realization of a specified Internal Rate
of Return that must be satisfied in order for such Option, or
Tranche, to become vested and exercisable.
“Purchaser” shall mean MYR Group Holdings, LLC.
“Shares”
shall mean shares of the common
stock of the Company.
“Termination of
Employment ” shall
mean, with respect to any Eligible Employee, his or her ceasing to
be employed by the Company or any of its Affiliated
Companies.
“Tranche”
shall mean a portion of an Option,
covering a specified percentage of the total number of Shares that
may be purchased under the Option, that is subject to requirements
for vesting and exercisability that differ in any respect from the
requirements for vesting and exercisability of the Option with
respect to Shares covered under any other portion of the
Option.
3.
Shares Available for the Grant of Options
Shares delivered upon the exercise
of Options granted under the Plan may be authorized but unissued
Shares, or previously issued Shares reacquired by the Company by
private purchase or redemption or by purchase on the open market.
The number of Shares available for issuance in respect of Options
granted under the Plan shall be subject to the following
limitations:
(a)
The aggregate number of Shares that may be issued in respect of
Options granted under the Plan, as determined as of any date, shall
not exceed 1,827,409 Shares.
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(b)
Upon the grant of any Option hereunder, the aggregate number of
Shares available for further grants of Options under the Plan shall
be reduced by the number of Shares subject to the Option so
granted.
(c)
There shall be added back to the aggregate number of Shares
available for further grants of Options under the Plan, as
determined under (a) and (b) above, any Shares as to which an
Option granted hereunder has not been exercised at the time of its
expiration, cancellation or forfeiture.
(d)
The limitations provided in this Section 4 shall be subject to
adjustment as provided in Section 8.
4.
Grant of Options
Subject to the limitations set forth
in Section 3, Options may be granted under the Plan at such times,
to such Eligible Employees, for the purchase of such number of
Shares, upon such terms and conditions not inconsistent with the
provisions of the Plan, as the Board of Directors in its sole
discretion may determine.
Each grant of an Option hereunder
shall be evidenced by a written instrument in such form as the
Board of Directors shall prescribe, setting forth the terms and
conditions applicable to such Option. Except as otherwise provided
under the Plan, an Option may be granted to any individual Eligible
Employee or group of Eligible Employees on terms and conditions
that differ from the terms and conditions upon which Options are
granted to any other individual Eligible Employee or group of
Eligible Employees. The instrument evidencing the grant of any
Option shall specify that the Option shall be subject to all of the
terms and provisions of the Plan as in effect from time to time
subject, however, to the limitation on amendments set forth in
Section 12.
5.
Terms and Conditions for Options
Options under the Plan shall be
granted subject to the terms and conditions set forth
below.
(a)
Type of Options . The terms of each Option shall provide
that it will not be treated as an “incentive stock
option” within the meaning of section 422(b) of the
Code.
(b)
Tranches . Each Option granted under the Plan during 2006
shall be divided into three Tranches. The first Tranche of such
Option shall be designated as Tranche I, and shall cover 25% of the
total number of Shares subject to the Option. The second and third
Tranches of such Option shall be designated, respectively, as
Tranche II and Tranche III, and shall each cover 37.5% of the total
number of Shares subject to such Option. Options granted under the
Plan after December 31, 2006 may be divided into such number of
Tranches (if any), covering such percentages of the total number of
Shares subject to such Options, as the Board of Directors may
determine in its sole discretion.
(c)
Term of Options . The term during which an Option may be
exercised shall be such period of time as determined by the Board
of Directors at the time of grant of the Option,
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but in no event may the term of any Option
exceed ten years from the Option’s Date of Grant.
Notwithstanding any other provision in the Plan to the contrary, no
Option may be exercised after its expiration.
(d)
Vesting and Exercise of Options . Each Option granted under
the Plan shall vest and become exercisable, in whole or in part, at
such time or times during its term, and subject to the satisfaction
of such requirements, (i) as provided in (e) below, in the case of
any Option granted during 2006, and (ii) as determined by the Board
of Directors in its sole discretion and as specified in the
instrument evidencing the grant of the Option, in the case of any
Option granted after December 31, 2006. To the extent that an
Option has become exercisable pursuant to the preceding sentence,
it may be exercised thereafter at any time or from time to time
during its term, as to any or all Shares as to which the Option has
become and remains exercisable, subject to the provisions of (f)
below.
(e)
Vesting Requirements for Options Granted in 2006 . Each
Option granted under the Plan during 2006 shall become vested and
exercisable in accordance with the provisions set forth
below.
(i)
Each Tranche of such Option shall become vested and exercisable (A)
with respect to 1/3rd of the total number of Shares covered by such
Tranche , on the first anniversary of the Option’s Date of
Grant or, if later, on the first date as of which the Performance
Requirement applicable to such Tranche has been satisfied; (B) with
respect to an additional 1/3rd of the total number of Shares
covered by such Tranche, on the second anniversary of the
Option’s Date of Grant or, if later, on the first date as of
which the Performance Requirement applicable to such Tranche has
been satisfied; and (C
