EXHIBIT 10.5
Xxxxxx Xxxxxxxx
COMFORT SYSTEMS USA, INC.
2000 EQUITY INCENTIVE PLAN
Restricted Stock Award Agreement
Comfort Systems USA, Inc.
000 Xxxx Xxx Xxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned (i) acknowledges that he has received an award (the
"Award") of restricted stock from Comfort Systems USA, Inc., a Delaware
corporation (the "Company") under the 2000 Equity Incentive Plan (the "Plan"),
subject to the terms set forth below and in the Plan; (ii) further acknowledges
receipt of a copy of the Plan as in effect on the date hereof; and (iii) agrees
with the Company as follows:
1. Effective Date. This Agreement shall take effect as of November 1,
2002, which is the date of grant of the Award.
2. Shares Subject to Award. The Award consists of 75,000 shares (the
"Shares") of common stock of the Company ("Stock"). The undersigned's
rights to the Shares are subject to the restrictions described in this
Agreement and the Plan (which is incorporated herein by reference with
the same effect as if set forth herein in full) in addition to such
other restrictions, if any, as may be imposed by law.
3. Meaning of Certain Terms. Except as otherwise expressly provided, all
terms used herein shall have the same meaning as in the Plan. The term
"vest" as used herein with respect to any Share means the lapsing of
the restrictions described herein and in the Plan with respect to such
Share.
4. Nontransferability of Shares. The Shares acquired by the undersigned
pursuant to this Agreement shall not be sold, transferred, pledged,
assigned or otherwise encumbered or disposed of except as provided
below and in the Plan.
5. Forfeiture Risk. Except as provided in Section 7(b) of this Agreement,
if the undersigned ceases to be employed by the Company and its
subsidiaries for any reason, including death, any then unvested Shares
acquired by the undersigned hereunder shall be immediately forfeited.
The undersigned hereby (i) appoints the Company as the attorney-in-fact
of the undersigned to take such actions as may be necessary or
appropriate to effectuate a transfer of the record ownership of any
such shares that are unvested and forfeited hereunder, (ii) agrees to
deliver to the Company, as a precondition to the issuance of any
certificate or certificates with respect to unvested Shares hereunder,
one or more stock powers, endorsed in blank,
with respect to such Shares, and (iii) agrees to sign such other powers
and take such other actions as the Company may reasonably request to
accomplish the transfer or forfeiture of any unvested Shares that are
forfeited hereunder.
6. Retention of Certificates. Any certificates representing unvested
Shares shall be held by the Company. The undersigned agrees that the
Company may give stop transfer instructions to the depository to ensure
compliance with the provisions hereof.
7. Vesting of Shares. The shares acquired hereunder shall vest in
accordance with the provisions of this Paragraph 7 and applicable
provisions of the Plan, as follows:
(a) If the Committee determines that, for the period from
January 1, 2003 through December 31, 2003, the Company did not have
positive earnings from its continuing operations, as determined before
interest, taxes, depreciation and amortization, all as determined and
reported in accordance with generally accepted accounting principles in
the Company's regularly prepared financial statements, Employee shall
immediately and irrevocably forfeit all of the Shares.
(b) If and only if the positive earnings goal in Section 7(a)
has been achieved, and provided that the undersigned is then, and since
the date of grant has continuously been employed by the Company or its
subsidiaries, then the Shares shall vest as follows:
18,750 Shares on February 28, 2004;
an additional 18,750 Shares on November 1, 2004;
an additional 18,750 Shares on November 1, 2005; and
an additional 18,750 Shares on November 1, 2006.
provided, however, that, not withstanding (a) or (b) above, any
unvested Shares that have not earlier been forfeited shall vest
immediately in the event of (i) a "Change in Control" as defined in the
Employment Agreement dated November 4, 2002 between the undersigned and
the Company (the "Employment Agreement") or (ii) the termination by the
Company of executive without cause as defined in the Employment
Agreement.
8. Legend. Any certificates representing unvested Shares shall be held by
the Company, and any such certificate shall contain a legend
substantially in the following form:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF
STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE) OF THE COMPANY'S 2000 EQUITY
INCENTIVE PLAN AND A RESTRICTED STOCK AWARD AGREEMENT ENTERED
INTO BETWEEN THE REGISTERED OWNER AND COMFORT SYSTEMS USA,
INC. COPIES OF SUCH PLAN AND
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AGREEMENT ARE ON FILE IN THE OFFICES OF COMFORT SYSTEMS USA,
INC.
As soon as practicable following the vesting of any such Shares the
Company shall cause a certificate or certificates covering such Shares
to be delivered to the undersigned.
9. Dividends, etc.. The undersigned shall be entitled to (i) receive any
and all dividends or other distributions paid with respect to those
Shares of which he is the record owner on the record date for such
dividend or other distribution, and (ii) vote any Shares of which he is
the record owner on the record date for such vote; provided, however,
that any property (other than cash) distributed with respect to a share
of Stock (the "associated share") acquired hereunder, including without
limitation a distribution of Stock by reason of a stock dividend, stock
split or otherwise, or a distribution of other securities with respect
to an associated share, shall be subject to the restrictions of this
Agreement in the same manner and for so long as the associated share
remains subject to such restrictions, and shall be promptly forfeited
to the Company if and when the associated share is so forfeited; and
further provided, that the Administrator may require that any cash
distribution with respect to the Shares other than a normal cash
dividend be placed in escrow or otherwise made subject to such
restrictions as the Administrator deems appropriate to carry out the
intent of the Plan. References in this Agreement to the Shares shall
refer, mutatis mutandis, to any such restricted amounts.
10. Sale of Vested Shares. The undersigned understands that he will be free
to sell any Share once it has vested, subject to (i) satisfaction of
any applicable tax withholding requirements with respect to the vesting
or transfer of such Share; (ii) the completion of any administrative
steps (for example, but without limitation, the transfer of
certificates) that the Company may reasonably impose; and (iii)
applicable company policies and the requirements of federal and state
securities laws.
11. Certain Tax Matters. The undersigned expressly acknowledges the
following:
a. The undersigned has been advised to confer promptly with a
professional tax advisor to consider whether the undersigned
should make a so-called "83(b) election" with respect to the
Shares. Any such election, to be effective, must be made in
accordance with applicable regulations and within thirty (30)
days following the date of this award. The Company has made no
recommendation to the undersigned with respect to the
advisability of making such an election.
b. The award or vesting of the Shares acquired hereunder, and the
payment of dividends with respect to such shares, may give
rise to "wages" subject to withholding. The undersigned
expressly acknowledges and agrees that his rights hereunder
are subject to his paying to the Company in cash (or by such
other means as may be acceptable to the Company in its
discretion, including, if the Committee so determines, by the
delivery of previously acquired Stock or shares of Stock
acquired hereunder or by the withholding of amounts from
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any payment hereunder) all taxes required to be withheld in
connection with such award, vesting or payment.
Very truly yours,
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
The foregoing Restricted Stock
Award Agreement is hereby accepted:
COMFORT SYSTEMS USA, INC.
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chief Executive Officer
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