EXHIBIT 10.26
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into by and
between Comfort Systems USA, Inc., a Delaware corporation ("Company"), and the
individuals listed on ANNEX A to this Agreement (individually, "Indemnitee").
INTRODUCTION
Indemnitee is a director and/or officer of the Company. The parties desire
that the Company provide indemnification (including advancement of expenses) to
Indemnitee against any and all liabilities asserted against Indemnitee to the
fullest extent permitted by the Delaware General Corporation Law ("Act"), as the
Act presently exists and may be expanded from time to time. Based on such
premise, and for certain good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. CONTINUED SERVICE. Indemnitee will serve at the will of the Company or
under separate contract, if such exists, as a director and/or officer of the
Company for so long as Indemnitee is duly elected and qualified in accordance
with the Bylaws of the Company or until Indemnitee tenders his or her
resignation to the Company.
2. INDEMNIFICATION. The Company shall indemnify Indemnitee as follows:
2.1. The Company shall indemnify Indemnitee when Indemnitee was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company), by
reason of the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with such action, suit or proceeding if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe that
Indemnitee's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that Indemnitee's conduct was unlawful.
2.2. The Company shall indemnify Indemnitee when Indemnitee was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Company, 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 against expenses
(including attorneys' fees) actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such action or suit if Indemnitee
acted in good faith and in a manner that Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company and except that no
indemnification pursuant to this Agreement shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
2.3. Any indemnification under Sections 2.1 and 2.2 (unless ordered
by a court) shall be made by the Company only as authorized in the specific case
upon a determination, in accordance with the procedures set forth in Section 3,
that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct set forth in such Sections
2.1 and 2.2. Such determination shall be made (1) by the board of directors of
the Company by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders of the Company.
2.4. Expenses (including attorneys' fees) incurred by Indemnitee in
defending any civil, criminal, administrative, or investigative action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding, as authorized in the manner provided in Section
2.3, within 14 days after the receipt by the Company from Indemnitee of a
Statement of Undertaking in substantially the form set forth in Exhibit A, in
which Indemnitee (1) states that Indemnitee has reasonably incurred actual
expenses in defending a civil, criminal, administrative, or investigative
action, suit or proceeding and (2) undertakes to repay such amount if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by
the Company as authorized in this Section 2.
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2.5. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 2 shall not be deemed exclusive of any other
rights to which Indemnitee may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
Indemnitee's official capacity and as to action in another capacity while
holding such office, shall continue after Indemnitee has ceased to be a
director, officer, employee or agent of the Company, and shall inure to the
benefit of the heirs, executors and administrators of Indemnitee.
3. DETERMINATION OF RIGHT TO INDEMNIFICATION. For the purpose of making
the determination of whether to indemnify Indemnitee in a specific case under
Section 2.3, the board of directors of the Company, independent legal counsel or
stockholders, as the case may be, shall make the determination in accordance
with the following procedures:
3.1. Indemnitee shall submit to the board of directors a Statement
of Request for Indemnification in substantially the form set forth in Exhibit B,
in which Indemnitee states that Indemnitee has met the applicable standard of
conduct set forth in Sections 2.1 and 2.2.
3.2. Indemnitee's submission of a Statement of Request for
Indemnification to the board of directors shall create a rebuttable presumption
that Indemnitee has met the applicable standard of conduct set forth in Sections
2.1 and 2.2 and, therefore, is entitled to indemnification under Section 2. The
board of directors, independent legal counsel or stockholders, as the case may
be, shall determine, within 30 days after submission of the Statement of Request
for Indemnification, specifically that Indemnitee is so entitled, unless it or
they shall possess clear and convincing evidence to rebut the foregoing
presumption, which evidence shall be disclosed to Indemnitee with particularity
in a sworn written statement signed by all persons who participated in the
determination and voted to deny indemnification.
4. MERGER, CONSOLIDATION OR CHANGE IN CONTROL. If the Company is a
constituent corporation in a merger or consolidation, whether the Company is the
resulting or surviving corporation or is absorbed as a result thereof, or if
there is a change in control of the Company, Indemnitee shall stand in the same
position under this Agreement with respect to the resulting, surviving or
changed corporation as Indemnitee would have with respect to the Company if its
separate existence had continued or if there had been no change in the control
of the Company.
5. CERTAIN DEFINITIONS. For the purposes of this Agreement, the following
terms shall have the indicated meanings and understandings:
5.1. The term "other enterprise" shall include, among others,
employee benefit plans and civic, non-profit and charitable organizations,
whether or not incorporated.
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5.2. The term "fines" shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan.
5.3. The term "serving at the request of the Company" shall include
any service, at the request or with the express or implied authorization of the
Company, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, which service imposes
duties on, or involves services by, Indemnitee with respect to such corporation,
partnership, joint venture, trust or other enterprise, its participants or
beneficiaries. If Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of such other
enterprise, its participants or beneficiaries, Indemnitee shall be deemed to
have acted in a manner not opposed to the best interests of the Company.
5.4. The term "change of control" shall include any change in the
ownership of a majority of the outstanding voting securities of the Company or
in the composition of a majority of the members of the board of directors of the
Company.
6. ATTORNEYS' FEES. If Indemnitee institutes any legal action to enforce
Indemnitee's rights under this Agreement, or to recover damages for breach of
this Agreement, Indemnitee, if Indemnitee prevails in whole or in part, shall be
entitled to recover from the Company all fees and expenses (including attorneys'
fees) incurred by Indemnitee in connection therewith.
7. DEPOSIT OF FUNDS IN TRUST. If the Company voluntarily decides to
dissolve or to file a petition for relief under the applicable bankruptcy,
moratorium or similar laws, then not later than 10 days prior to such
dissolution or filing, the Company shall deposit in trust for the sole and
exclusive benefit of Indemnitee a cash amount equal to all amounts previously
authorized to be paid to Indemnitee hereunder, such amounts to be used to
discharge the Company's obligations to Indemnitee hereunder. Any amounts in such
trust not required for such purpose shall be returned to the Company. This
Section 7 shall not apply to the dissolution of the Company in connection with a
transaction as to which Section 4 applies.
8. AMENDMENTS TO ACT. This Agreement is intended to provide indemnity to
Indemnitee to the fullest extent allowed under Delaware law. Accordingly, to the
extent permitted by law, if the Act permits greater indemnity than the indemnity
set forth herein, or if any amendment is made to the Act expanding the indemnity
permissible under Delaware law, the indemnity obligations contained herein
automatically shall be expanded, without the necessity of action on the part of
any party, to the extent necessary to provide to Indemnitee the fullest
indemnity permissible under Delaware law.
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9. MISCELLANEOUS PROVISIONS.
9.1. SURVIVAL. The provisions of this Agreement shall survive the
termination of Indemnitee's service as a director or officer of the Company.
9.2. ENTIRE AGREEMENT. This Agreement constitutes the full
understanding of the parties and a complete and exclusive statement of the terms
and conditions of their agreement relating to the subject matter hereof and
supersedes all prior negotiations, understandings and agree ments, whether
written or oral, between the parties, their affiliates, and their respective
principals, shareholders, directors, officers, employees, consultants and agents
with respect thereto.
9.3. AMENDMENTS AND WAIVERS. No alteration, modification, amendment,
change or waiver of any provision of this Agreement shall be effective or
binding on any party hereto unless the same is in writing and is executed by all
parties hereto.
9.4. MODIFICATION AND SEVERABILITY. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid
or unenforceable, then such provision shall be modified automatically to the
extent necessary to make such provision fully legal, valid or enforce able. If
such court does not modify any such provision as contemplated herein, but
instead declares it to be wholly illegal, invalid or unenforceable, then such
provision shall be severed from this Agreement, this Agreement and the rights
and obligations of the parties hereto shall be construed as if this Agreement
did not contain such severed provision, and this Agreement otherwise shall
remain in full force and effect.
9.5. ENFORCEABILITY. This Agreement shall be enforceable by and
against the Company, the Indemnitee and their respective executors, legal
representatives, administrators, heirs, successors and assignees.
9.6. GOVERNING LAW. This Agreement shall be governed by, construed
under, and enforce in accordance with the laws of the State of Delaware without
reference to the conflict-of-laws provisions thereof.
9.7. MULTIPLE COUNTERPARTS. This Agreement may be executed by the
parties hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute one and
the same instrument.
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The parties hereto have executed this Agreement to be effective as of
___________, 1997.
COMPANY:
Comfort Systems USA, Inc.
By: ___________________________
Name: _________________________
Title: ________________________
INDEMNITEE:
By: ___________________________
Name: _________________________
Title: ________________________
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ANNEX A
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx, Xx.
Xxxxxx X. Xxxx
Xxxxx X. Atlas
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx III
Xxxxxx X. Xxxxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxxx
J. Xxxxxx Xxxxxxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx, III
Xxxxx Xxxxxx
Xxxx Xxxxxxxxxxx, Xx.
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EXHIBIT A
STATEMENT OF UNDERTAKING
STATE OF __________________ ss.
ss.
COUNTY OF _________________ ss.
I, __________________________________, being first duly sworn, depose and
say as follows:
1. This Statement of Undertaking is submitted pursuant to the Indemnity
Agreement dated __________________, between _____________________, a Delaware
corporation ("Company"), and me.
2. I am requesting the advancement of certain actual expenses which I have
reasonably incurred in defending a civil or criminal action, suit or proceeding
by reason of the fact that I am or was a director and/or officer of the Company.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. I am requesting the advancement of expenses in connection with the
following action, suit or proceeding:
I have executed this Statement of Undertaking on .
___________________________
Signature
___________________________
Print Name
Subscribed and sworn to before me on ___________________.
___________________________
Notary Public in and for
said state and county
My commission expires: _____________
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EXHIBIT B
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF __________________ ss.
ss.
COUNTY OF _________________ ss.
I, _______________________________, being first duly sworn, depose and say
as follows:
1. This Statement of Request for Indemnification is submitted pursuant to
the Indemnity Agreement dated _________________, between ____________________, a
Delaware corporation ("Company"), and me.
2. I am requesting indemnification against expenses (including attorneys'
fees) and, with respect to any action not by or in the right of the Company,
judgments, fines and amounts paid in settlement, all of which have been actually
and reasonably incurred by me in connection with a certain action, suit or
proceeding to which I am a party or am threatened to be made a party by reason
of the fact that I am or was a director and/or officer of the Company.
3. With respect to all matters related to any such action, suit or
proceeding, I acted in good faith and in a manner I reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, I had no reason to believe that my conduct was
unlawful.
4. I am requesting indemnification in connection with the following suit,
action or proceeding:
I have executed this Statement of Request for Indemnification on
_______________.
___________________________
Signature
___________________________
Print Name
Subscribed and sworn to before me on ___________________.
___________________________
Notary Public in and for
said state and county
My commission expires: _____________
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