Exhibit
4.6


COMFORT SYSTEMS USA, INC.


2006 STOCK
OPTIONS/SAR PLAN FOR NON-EMPLOYEE DIRECTORS


1.              Purpose; Term


The purpose of this 2006 Stock
Options/SAR Plan for Non-Employee Directors (the “Plan”) is to advance the
interests of Comfort Systems USA, Inc. (the “Company”) by increasing the
proprietary interest in the Company of non-employee members of the Company’s
Board of Directors by providing a portion of their compensation in options to
acquire shares (“Shares”) of the Company’s common stock (“Common Stock”) and
rights to receive any excess in value of shares of Common Stock over the
exercise price (“Stock Appreciation Rights” or “SARs” and together with
options, the “Awards”). No Awards may be granted under the Plan more than ten
years after the effective date of the Plan, but Awards granted prior to that
date may continue in accordance with their terms.


2.              Administration and Definitions


The Plan shall be administered by
the Committee. Except to the extent action by the Committee is required under
Section 162(m) of the Code in the case of Awards intended to qualify for
performance-based compensation exception thereto, the Board may in any
instance perform any of the functions of the Committee hereunder. The Committee
shall select the participants to receive Awards (“Participants”) and shall
determine the terms and conditions of the Awards. The Committee shall have
authority, not inconsistent with the express provisions of the Plan:
(a) to administer the issuance of Awards granted in accordance with the
formula set forth in this Plan to such Participants as are eligible to receive
Awards; (b) to prescribe the form or forms of instruments evidencing
Awards and any other instruments required under the Plan and to change such
forms from time to time; (c) to adopt, amend and rescind rules and
regulations for the administration of the Plan; and (d) to interpret the
Plan and to decide any questions and settle all controversies and disputes that
may arise in connection with the Plan. Such determinations of the Committee
shall be conclusive and shall bind all parties. Notwithstanding anything else,
transactions under this Plan, to the extent they would otherwise be subject to
Section 16 of the Securities Exchange Act of 1934, are intended to comply
with all applicable conditions of Rule 16b-3 or its successors under
Section 16 of the Securities Exchange Act of 1934 (“Rule 16b-3”). To
the extent any provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee. In the case of an Award intended to be
eligible for the performance-based compensation exception under
Section 162(m), the Plan and such Award shall be construed to the maximum
extent permitted by law in a manner consistent with qualifying the Award for
such exception.


Consistent with the above
requirements, the Committee may delegate (consistent with such of its duties,
powers and responsibilities as it may determine (and in the event of any such
delegation, references herein to the Committee shall include the person or
persons so delegated to the extent of such delegation).


As used herein, “Committee” means
one or more committees each comprised of not less than two members of the Board
of Directors (the “Board”) appointed by the Board to administer the Plan or a
specified portion thereof. Unless otherwise determined by the Board, if a
Committee is authorized to grant Awards to a Reporting Person or a Covered
Employee, each member shall be a “non-employee director” within the meaning of
Rule 16b-3 under the Exchange Act or, respectively, an “outside director”
within the meaning of Section 162(m) of the Code, respectively. “Covered
Employee” means a “covered employee” within the meaning of Section 162(m)
of the Code. “Reporting Person” means a person subject to Section 16 of
the Exchange Act.


3.              Effective Date


The Plan shall be effective on
the date it is approved by the stockholders.









 



4.              Shares Subject to the Plan


(a)           Number of Shares.  Subject to
the other terms of the Plan, no more than 500,000 shares of Common Stock in the
aggregate may be delivered under or in satisfaction of Awards. Each share of
Common Stock subject to an Award shall be counted against the limit as one
(1) share. However, SARs to be settled in shares of Common Stock shall be
counted in full against this limit, regardless of the number of shares of
Common Stock issued upon settlement of the SAR.


(b)           No Fractional Shares to be
Delivered.  Shares delivered under the Plan may be
authorized but unissued common stock, or previously issued common stock that we
acquire and hold in our treasury. No fractional Shares shall be delivered under
the Plan.


(c)           Reversion to the Plan.  For the
avoidance of doubt, if an outstanding Award for any reason expires or is
terminated or canceled without having been exercised or settled in full, or if
shares of Common Stock acquired pursuant to an Award subject to forfeiture or
repurchase are forfeited or repurchased by the Company for an amount not
greater than the Participant’s purchase price, the shares of Common Stock
allocable to the terminated portion of such Award or such forfeited or
repurchased shares of Stock shall again be available for issuance under the
Plan. Shares of Common Stock shall not be deemed to have been issued pursuant
to the Plan (a) with respect to any portion of an Award that is settled in
cash or other property (other than shares of Stock) or (b) to the extent
such shares are withheld or reacquired by the Company in satisfaction of tax
withholding obligations. Upon payment in shares of Stock pursuant to the
exercise of an SAR, the number of shares available for issuance under the Plan
shall be reduced as provided in Section 4(a).


5.              Eligibility


Directors eligible to receive
Awards under the Plan (“Non-Employee Directors”) shall be those directors who
are not present or former employees of the Company or of any subsidiary or
other affiliate of the Company.


6.              Terms and Conditions of Awards


(a)           Individual Award Limits.  On the
date of each annual meeting, each Non-Employee Director who has served since at
least the previous annual meeting and is continuing in office and each newly
elected Non-Employee Director shall be awarded an Award covering 10,000 Shares
(which shall be the maximum number of shares of Common Stock subject to Awards
that may be granted to any Participant under the Plan in the aggregate in any
calendar year). For purposes of this paragraph, each Non-Employee Director
elected to office by the Board since the then last annual meeting shall be
treated as a newly elected Non-Employee Director.


(b)           Exercise Price.  The
exercise price of each Award shall be 100% of the Fair Market Value per Share
at the time the Award is granted. In no event, however, shall the exercise
price be less, in the case of an original issue of authorized stock, than par
value per share. For all purposes hereunder, “Fair Market Value” means,
(i) with respect to Common Stock, (A) for so long as such Stock is
readily tradeable on an established securities market (within the meaning of
Section 409A), the closing price on the trading day of the grant, and
(B) otherwise, the fair market value of such Stock determined by the
Committee by a reasonable application of a reasonable valuation method (within
the meaning of Section 409A); and, (ii) with respect to any other
property, the fair market value of such property as determined by the Committee
in good faith in the manner established by the Committee from time to time.


(c)           Grant of Options and SARs.  Subject to
the provisions of the Plan, the Committee may grant options and SARs. The
Committee shall determine at the time of grant or thereafter whether SARs are
settled in cash, Common Stock or other securities of the Company or other
property, and may define the manner of determining the excess in value of the
shares of Common Stock. Each option and SAR shall be exercisable at such times
and subject to such terms and conditions as the Committee may specify in the
applicable grant or thereafter. The Committee may impose such conditions with
respect to the grant and exercise of an option or SARs, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable.


(d)           Duration.  The latest
date on which an Award may be exercised (the “Final Exercise Date”) shall be
the date which is ten years from the date the Award was granted.









 



(e)           Exercise.


(i)            Each Award shall become exercisable to the full
extent of all Shares covered thereby one year after the date of the grant.


(ii)           Any exercise of an Award shall be in writing,
signed by the proper person and delivered or mailed to the Company, accompanied
by (i) any documentation required by the Committee and (ii) payment
in full for the number of Shares for which the Award is exercised.


(iii)          The Participant shall pay to the Company, or make
provision satisfactory to the Committee for payment of, any taxes (including
any FICA or similar taxes) required by law to be withheld in respect of Awards
under the Plan no later than the date of the event creating the tax liability.
The Company and its affiliates may, to the extent permitted by law, deduct any
such tax (including any FICA or similar tax) obligations from any payment of
any kind due to the Participant hereunder or otherwise. In the Committee’s
discretion, the minimum tax (including any FICA or similar taxes) obligations
required by law to be withheld in respect of Awards may be paid in whole or in
part in shares of Stock, including shares retained from the Award creating the
obligation, valued at their Fair Market Value on the date of retention or
delivery.


(iv)          If an Award is exercised by the executor or
administrator of a deceased director, or by the person or persons to whom the
Award has been transferred by the director’s will or the applicable laws of
descent and distribution, the Company shall be under no obligation to deliver
Shares pursuant to such exercise until the Company is satisfied as to the
authority of the person or persons exercising the Award.


(f)            Payment.  No shares
shall be delivered pursuant to any exercise of an option until payment in full
of the exercise price therefor is received by the Company. Such payment may be
made in whole or in part in cash or, to the extent legally permissible and
expressly permitted by the Committee at or after the grant of the option, by
delivery of other property such as shares of Common Stock that have been owned
by the optionee for at least six months (or such other period as the Committee
may determine), valued at their Fair Market Value on the date of delivery or
such other lawful consideration, including a payment commitment of a financial
or brokerage institution, as the Committee may determine; or any combination of
the foregoing permitted forms of payment.


(g)           No Rights As Stockholder.  An Award
holder shall not have the rights of a shareholder with regard to awards under
the Plan except as to Stock actually received by him or her under the Plan.


(h)           Documentation and Legal
Conditions on Delivery of Stock.  Each Award shall be evidenced by a writing
delivered to the Participant or agreement executed by the Participant
specifying the terms and conditions thereof and containing such other terms and
conditions not inconsistent with the provisions of the Plan as the Committee
considers necessary or advisable to achieve the purposes of the Plan or to
comply with applicable tax and regulatory laws and accounting principles. The
Company will not be obligated to deliver any shares of Stock pursuant to the
Plan or to remove any restriction from shares of Stock previously delivered
under the Plan until: the Company’s counsel has approved all legal matters in
connection with the issuance and delivery of such shares; if the outstanding
Stock is at the time of delivery listed on any stock exchange or national
market system, the shares to be delivered have been listed or authorized to be
listed on such exchange or system upon official notice of issuance; and all
conditions of the Award have been satisfied or waived. If the sale of Stock has
not been registered under the Securities Act of 1933, as amended, the Company
may require, as a condition to exercise of the Award, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of such Act. The Company may require that certificates evidencing
Stock issued under the Plan bear an appropriate legend reflecting any
restriction on transfer applicable to such Stock.


(i)            Nontransferability.  No Award
may be transferred other than by will or the laws of descent and distribution
and may be exercised, during the life of the Participant, only by the
Participant, except that the Committee may permit certain transfers to the
Participant’s family members or to certain entities controlled by the
Participant or his or her family members.









 



(j)            Termination of Service.  Unless the
Committee expressly provides otherwise, the following rules shall apply
affiliates. Immediately upon the cessation of the Participant’s service
relationship with the Company and its affiliates an Award requiring exercise
will cease to be exercisable and all Awards to the extent not already fully
vested will be forfeited, except that:


(i)            All Awards held by a Participant immediately prior
to his or her death, to the extent then exercisable, will remain exercisable by
such Participant’s executor or administrator or the person or persons to whom
the Award is transferred by will or the applicable laws of descent and
distribution, in each case for the lesser of (i) the one year period
ending with the first anniversary of the Participant’s death or (ii) the
period ending on the latest date on which such Award could have been exercised
without regard to this subsection (g), and shall thereupon terminate; and


(ii)           all Awards held by the Participant immediately
prior to the cessation of the Participant’s employment or other service
relationship for reasons other than death and except as provided in
(iii) below, to the extent then exercisable, will remain exercisable for
the lesser of (1) a period of six months or (2) the period ending on
the latest date on which such Award could have been exercised without regard to
this subsection (g), and shall thereupon terminate.


(iii)          Unless the Committee expressly provides otherwise,
a Participant’s “service relationship with the Company and its affiliates” will
be deemed to have ceased when the service relationship in respect of which the
Award was granted terminates (whether or not the Participant continues in the
service of the Company or its affiliates in some other capacity).


(k)           Amendment of Award.  Except as
otherwise expressly provided in the Plan, the Committee may amend, modify, or
terminate any outstanding Award, including substituting therefor another Award
of the same or a different type, changing the date of exercise or realization.
Any such action shall require the Participant’s consent unless the Committee
determines that the action would not materially and adversely affect the
Participant.


7.              Effect, Termination, Amendment and Governing Law


The Board of Directors may amend,
suspend, or terminate the Plan or any portion thereof at any time, subject to
such stockholder approval as the Board determines to be necessary or advisable.
Further, under all circumstances, the Committee may, but shall not be required
to, make non-substantive administrative changes to the Plan as to conform with
or take advantage of governmental requirements, statutes or regulations. Except
as provided in Section 6(k), no such amendment, modification or
termination will adversely affect the rights of any Participant (without his or
her consent) under any Award previously granted and no such amendment will,
without the approval of the stockholders of the Company, effectuate a change
for which stockholder approval is required in order for the Plan to qualify or
to continue to qualify under Rule 16b-3 or for Awards intended to be
eligible for the performance-based exception under Section 162(m) to
continue such eligibility. Except as otherwise provided by the express terms of
an Award Agreement, the provisions of the Plan and of Awards under the Plan
shall be governed by and interpreted in accordance with the laws of the State
of Delaware.


8.              Application of Code Section 409A


Awards under the Plan are
intended either to be exempt from the rules of Section 409A of the Code or
to satisfy those rules, and shall be construed accordingly. Granted Awards may
be modified at any time, in the Committee’s discretion, so as to increase the
likelihood of exemption from or compliance with the rules of Section 409A
of the Code.


9.              Option or SAR Repricing


Without the affirmative vote of
holders of a majority of the shares of Common Stock cast in person or by proxy
at a meeting of the stockholders of the Company at which a quorum representing
a majority of all outstanding shares of Common Stock is present or represented
by proxy, neither the Board nor the Committee shall approve either (a) the









 



cancellation of outstanding Options or SARs and the grant
in substitution therefor of new Options or SARs having a lower exercise price
or (b) the amendment of outstanding Options or SARs to reduce the exercise
price thereof. This paragraph shall not be construed to apply to: (i) the
substitution or assumption of an Award by reason of or pursuant to a corporate
transaction, to the extent such substitution or assumption would not be treated
as a grant of a new stock right or a change in the form of payment for purposes
of Section 409A of the Code within the meaning of Prop. Treas. Reg.
Section 1.409A-1(b)(5)(iii)(D)(3), Notice 2005-1, A-4(d) and any
subsequent Section 409A guidance (whether administrative or regulatory);
or (ii) adjustments made pursuant to Section 10(b).


10.           Effect of Certain Transactions


(a)           Assumptions or Substitutions.  Except as
otherwise expressly provided in an Award Agreement:


(i)            In the event of a Corporate Transaction in which
there is an acquiring or surviving entity, the Committee may, unless the
Committee determines that doing so is inappropriate or unfeasible, provide for
the continuation or assumption of some or all outstanding Awards, or for the
grant of new awards in substitution therefor, by the acquiror or survivor or an
entity controlling, controlled by or under common control with the acquiror or
survivor, in each case on such terms and subject to such conditions (including
vesting or other restrictions) as the Committee determines are appropriate.
Unless the Committee determines otherwise, the continuation or assumption shall
be done on terms and conditions consistent with Section 409A of the Code.


(ii)           In the event of a Corporate Transaction (whether
or not there is an acquiring or surviving entity), the Committee may provide
(unless the Committee determines otherwise, on terms and conditions consistent
with Section 409A of the Code) for treating as satisfied any vesting
condition on any such Award.


(iii)          Except as otherwise expressly provided in an Award
agreement, each Award (unless assumed pursuant to the
Section 10(a)(i) above), will terminate upon consummation of the
Corporate Transaction.


(iv)          If the Corporate Transaction is one in which
holders of Stock will receive upon consummation a payment (whether cash,
non-cash or a combination of the foregoing), the Committee may provide for
payment (a “cash-out”), with respect to some or all Awards, equal in the case
of each affected Award to the excess, if any, of (A) the Fair Market Value
of one share of Common Stock times the number of shares of Common Stock subject
to the Award, over (B) the aggregate exercise price, if any, under the
Award, in each case on such payment terms (which need not be the same as the
terms of payment to holders of Common Stock) and other terms, and subject to
such conditions, as the Committee determines.


For this purpose, “Corporate
Transaction” means any of the following: any sale of all or substantially all
of the assets of the Company, change in the ownership of the capital stock of
the Company, reorganization, recapitalization, merger (whether or not the
Company is the surviving entity), consolidation, exchange of capital stock of
the Company or other restructuring involving the Company, provided, that, in each case, to the
extent any amount constituting “nonqualified deferred compensation” subject to
Section 409A of the Code would become payable under an Award by reason of
a Corporate Transaction, it shall become payable only if the event or
circumstances constituting the Corporate Transaction would also constitute a
change in the ownership or effective control of the Company, or a change in the
ownership of a substantial portion of the Company’s assets, within the meaning
of subsection (a)(2)(A)(v) of Section 409A of the Code.


(b)           Changes In, Distributions With
Respect To And Redemptions Of The Stock


(i)            In the event of any stock dividend or other
similar distribution of stock or other securities of the Company, stock split
or combination of shares (including a reverse stock split), recapitalization,
conversion, reorganization, consolidation, split-up, spin-off, combination,
merger, exchange of stock, redemption or repurchase of all or part of the
shares of any class of stock or any change in the capital structure of the
Company or an affiliate or other transaction or event, the Committee may, as
appropriate in order to prevent enlargement or dilution of benefits intended to
be made available under the Plan, make adjustments to the maximum number of
shares that may be delivered and may also make appropriate adjustments to the
number and kind of shares of









 



stock
or securities subject to Awards then outstanding or subsequently granted, any
exercise prices relating to Awards and any other provision of Awards affected
by such change.


(ii)           The Committee may also make adjustments of the
type described in Section 10(a) and 10(b)(i) above to take into
account distributions to stockholders other than stock dividends or normal cash
dividends, material changes in accounting practices or principles,
extraordinary dividends, mergers, consolidations, acquisitions, dispositions or
similar transactions involving Stock, or any other event, if the Committee
determines that adjustments are appropriate to avoid distortion in the
operation of the Plan and to preserve the value of Awards made hereunder,
having due regard for the continued exemption of the Awards from (or
satisfaction by the Awards of the rules of) Section 409A of the Code,
where applicable and, in the case of Awards intended to qualify for the
performance-based compensation exception Section 162(m) of the Code,
having due regard continued qualification for that exception.


(iii)          References in the Plan to shares of Common Stock
will be construed to include any stock or securities resulting from an
adjustment pursuant to this Section 10.