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.
2
(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) &
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