Exhibit 10.1


 


FORM OF
DIRECTORS AND OFFICERS


INDEMNIFICATION
AGREEMENT


 


INDEMNIFICATION
AGREEMENT


 


This
Indemnification Agreement (this “Agreement”) is made and entered into as of May 15,
2009, by and between Comfort Systems USA, Inc., a Delaware corporation
(the “Company”), and [NAME] (the “Indemnitee”).


 


WHEREAS,
qualified persons are reluctant to serve organizations as directors or officers
or in other capacities unless they are provided with adequate protection
against risks of claims and actions against them arising out of their service
to and activities on behalf of such organizations;


 


WHEREAS,
the parties hereto recognize that the legal risks and potential liabilities,
and the threat thereof, associated with lawsuits filed against persons serving
the Company and/or its subsidiaries, and the resultant substantial time,
expense and anxiety spent and endured in defending lawsuits bears no reasonable
relationship to the compensation received by such persons, and thus poses a
significant deterrent and increased reluctance on the part of experienced and
capable individuals to serve the Company and/or its subsidiaries;


 


WHEREAS,
the uncertainties related to obtaining adequate insurance and indemnification
have increased the difficulty of attracting and retaining such persons;


 


WHEREAS,
it is reasonable, prudent and necessary for the Company to contractually agree
to indemnify such persons to the fullest extent permitted by law, so that such
persons will serve or continue to serve the Company and/or its subsidiaries
free from undue concern that they will not be adequately indemnified; and


 


WHEREAS,
the Indemnitee is willing to serve, continue to serve and to take on additional
service for an on behalf of the Company on the condition that the Indemnitee is
indemnified according to the terms of this Agreement;


 


NOW,
THEREFORE, in consideration of the premises and of Indemnitee’s agreement to
provide services to the Company and/or its subsidiaries and intending to be
legally bound hereby, the parties hereto agree as follows:


 


1.                                       Certain
Definitions:


 


(a)           Change
in Control:  shall be deemed to have
occurred if (i) any “person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company
representing 30% or more of the total voting power represented by the Company’s
then 


 

















 


outstanding Voting Securities or any such person or any affiliate
thereof that is such a 30% beneficial owner as of the date hereof), or (ii) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than 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 entity) at least 60% of the
total voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially all the Company’s
assets.


 


(b)           Claim:  any threatened, pending or completed action,
suit or proceeding (including any mediation, arbitration or other alternative
dispute resolution proceeding), whether instituted by or in the right of the
Company or by any other party, or any inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit
or proceeding, whether civil (including intentional and unintentional tort
claims), criminal, administrative, investigative or other.


 


(c)           Expenses:  include attorneys’ fees and all other costs,
expenses and obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in any Claim relating to
any Indemnifiable Event.


 


(d)           Indemnifiable
Event:  any event or occurrence
related to the fact that Indemnitee is or was serving as a member of the
Company’s Board of Directors or an Officer of the Company, whichever the case
may be, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise.


 


(e)           Independent
Legal Counsel:  a law firm, or a
member of a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the five years previous to the selection or
appointment has been, retained to represent: 
(i) the Company or Indemnitee in any matter material to either such
party or (ii) any other party to the Claim for which Indemnitee is seeking
indemnification hereunder (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements). 
Notwithstanding the foregoing, the term “Independent Legal Counsel”
shall not include any person who, under applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.


 


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(f)            Reviewing
Party:  (i) member or members of
the Company’s Board of Directors who are not a party to the particular Claim,
issue or matter for which Indemnitee is seeking indemnification, or (ii) Independent
Legal Counsel.


 


(g)           Voting
Securities:  any securities of the
Company that vote generally in the election of directors.


 


2.                                       Basic
Indemnification Arrangement.


 


(a)           In
the event Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest
extent permitted by law as soon as practicable but in any event no later than
thirty days after written demand is presented to the Company, against any and
all Expenses, liabilities, losses, judgments, fines, excise taxes, penalties
and amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses,
liabilities, losses, judgments, fines, excise taxes, penalties or amounts paid
in settlement) of such Claim.  If so
requested by Indemnitee, the Company shall advance (within ten business days of
such request) any and all Expenses to Indemnitee (an “Expense Advance”).  Expense Advances shall be made without regard
to the ability of Indemnitee to repay such amounts.  Any such Expense Advances shall be made on an
unsecured basis and be interest-free.


 


(b)           Notwithstanding
the foregoing, (i) the obligations of the Company under Section 2(a) shall
be subject to the condition that the Reviewing Party shall not have determined
(in a written opinion, in any case in which the Independent Legal Counsel
referred to in Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the obligation
of the Company to make an Expense Advance pursuant to Section 2(a) shall
be subject to the condition that, if, when and to the extent that the Reviewing
Party ultimately determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees and undertakes to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed).  If there has not
been a Change in Control, the Reviewing Party shall be members of the Company’s
Board of Directors who are not a party to the particular Claim, issue or matter
for which Indemnitee is seeking indemnification, and if there has been such a
Change in Control (other than a Change in Control which has been approved by a
majority of the Company’s Board of Directors who were directors immediately
prior to such Change in Control) or if no such disinterested directors are
available, the Reviewing Party shall be the Independent Legal Counsel referred
to in Section 3 hereof.  If there
has been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation in any court in the State of Texas or Delaware
having subject matter jurisdiction thereof and in which venue is proper seeking
an initial determination by the court or challenging any such determination by
the Reviewing Party or any 


 


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aspect thereof, including the legal or factual bases therefor, and the
Company hereby consents to service of process and to appear in any such
proceeding.  In the event that the
Indemnitee does not commence such litigation following a determination by the
Reviewing Party, such determination by the Reviewing Party shall be conclusive
and binding on the Company and Indemnitee.


 


(c)           The
Company shall not be liable to indemnify Indemnitee under this Agreement for
any amounts paid in settlement of any action or Claim effected without its
written consent. The Company shall not settle any action or claim in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee’s
written consent. Neither the Company nor Indemnitee will unreasonably withhold
their consent to any proposed settlement.


 


3.             Change in
Control.  The Company agrees that if
there is a Change in Control of the Company (other than a Change in Control
which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), then with respect
to all matters thereafter arising concerning the rights of Indemnitee to
indemnity payments and Expense Advances under this Agreement or any other
agreement or Company charter or bylaw provision now or hereafter in effect
relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from Independent Legal Counsel selected by Indemnitee and approved
by the Company (which approval shall not be unreasonably withheld).  Such counsel, among other things, shall
render its written opinion to the Company and Indemnitee as to whether and to
what extent the Company would be permitted to indemnify Indemnitee under
applicable law.  The Company agrees to
pay the reasonable fees and expenses of the Independent Legal Counsel referred
to above and to fully indemnify such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.


 


4.             Indemnification for Additional
Expenses.  The Company shall, to the
maximum extent permitted by law, indemnify Indemnitee against any and all
expenses (including attorneys’ fees) and, if requested by Indemnitee, shall
(within ten business days of such request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any action brought by
Indemnitee for (i) indemnification or Expense Advances under this
Agreement or any other agreement or Company charter or bylaw provision now or
hereafter in effect relating to Claims for Indemnifiable Events, or (ii) recovering
under any directors’ and officers’ liability insurance policies maintained by
the Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.


 


5.             Partial
Indemnity.  If Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for
some or a portion of the Expenses, judgments, fines, penalties and amounts paid
in settlement of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.  Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all Claims relating in whole or in part to an Indemnifiable Event or in defense
of any issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.


 


6.             Burden of Proof.  In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.


 


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7.             No Presumptions.  For purposes of this Agreement, the
termination of any claim, action, suit or proceeding by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere or its equivalent shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.  In
addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to Indemnitee’s claim or create a
presumption that Indemnitee has not met any particular standard of conduct or
did not have any particular belief.


 


8.             Nonexclusivity; Subsequent
Change in Law.  The rights of the
Indemnitee hereunder shall be in addition to any other rights Indemnitee may
have under the Company’s charter or bylaws or Delaware law, or otherwise.  To the extent that a change in Delaware law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s charter or
bylaws and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.


 


9.             D&O Liability Insurance.
The Company currently maintains a directors’ and officers’ liability insurance
policy and intends to continue to maintain such policies or replacements
thereof as long as, in its sole discretion, such coverages are economically
feasible. To the extent the Company maintains a directors’ and officers’
liability insurance policy or policies, and as long as Indemnitee remains an
officer or director of the Company, Indemnitee shall be covered by such policy
or policies in accordance with its or their terms, to the maximum extent of the
coverage available for any director or officer of the Company.  Further, after Indemnitee no longer serves as
an officer or director of the Company for any reason, the Company will use its
commercially reasonable efforts to continue to cover Indemnitee as a named
insured under the Company’s insurance policy or policies providing directors’
and officers’ liability insurance for a period of time that shall commence on
the date of termination and end on the date that is the sooner of (i) six
years after the date of termination, or (ii) the date on which the Company
ceases to maintain an insurance policy providing directors’ and officers’
liability insurance.


 


10.           Amendments; Waiver.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto.  No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.


 


11.           Subrogation.  In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.


 


12.           Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors or assigns (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or


 


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substantially all of the business and/or
assets of the Company), spouses, heirs, executors and personal or legal
representatives.  This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as an
officer or director of the Company, whichever the case may be.


 


13.           Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) is held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable in any
respect, and the validity and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired and shall remain enforceable to the fullest extent permitted by law.


 


14.           Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without giving
effect to the principles of conflicts of laws.


 


[Signature page follows]


 


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


 


 


	
   

  	
  COMFORT SYSTEMS USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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