EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") between COMFORT SYSTEMS
USA (TEXAS), L.P., a Texas limited partnership (the "Company"), and Xxxx X. Xxxx
("Employee") is entered into effective as of the 1st day of April, 2002.
RECITALS
1. The Company, Comfort Systems USA, Inc., a Delaware
corporation, and its subsidiaries and affiliates
(collectively, the "Comfort Group") are engaged in the
business of mechanical contracting services, including
heating, ventilation and air conditioning, piping, plumbing
and electrical and related services ("Services").
2. Employee has been employed by the Company in various executive
positions through March 31, 2002, most recently as its Chief
Operating Officer and President. In connection with the
transition of Employee from such position to a new part time
role, the Company desires to engage Employee in a part-time
capacity to facilitate the transition with respect to various
matters with which Employee has been involved and the Company
also desires to use Employee as a resource during the term of
this Agreement.
3. Employee is a party to that certain Employment Agreement dated
January 1, 2001 between the Employee and the Company (the
"Prior Employment Agreement").
NOW, THEREFORE, in consideration of such engagement and of the
promises, terms, covenants and conditions set forth herein, the Company and
Employee hereby agree as follows:
1. PRIOR EMPLOYMENT AGREEMENT TERMINATED. Employee hereby agrees that the
Prior Employment Agreement is hereby irrevocably terminated. As
consideration for such termination and in complete satisfaction and
release of all rights and benefits of the Employee under the Prior
Employment Agreement, Company will pay to Employee a lump-sum payment
equal to $250,000. The payment will be made on or before April 15, 2002
and shall be subject to all legally required withholding.
2. ENGAGEMENT AND DUTIES. The Company hereby engages Employee as a
part-time Employee for a period commencing on the date hereof, and
ending on September 30, 2005 (the "Term"), to perform such duties as
the Company may reasonably specify. Employee hereby accepts this
engagement and agrees to perform and make himself available from time
to time to and to devote reasonable time, attention and efforts, but
not to an average of 90 hours per quarter, to promote and further the
Company's business as the Company may reasonably require.
3. COMPENSATION, EXPENSES AND TERMINATION. During the term of Employee's
engagement with the Company, for all services rendered by Employee to
the Company, the Company shall pay to Employee $10,715 per calendar
quarter for each of the fourteen
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quarters during the Term, for an aggregate total payment of $150,010.
Payments will made pursuant to the Company's normal pay practices,
including all required deductions. Employee agrees that as a result of
his part-time status he will not be entitled to participate in any of
the Company's welfare benefit programs, including and health and dental
insurance. If at any time during the Term (i) substantially all of the
outstanding capital stock or assets of the Comfort Group is acquired,
by merger or otherwise, or (ii) the Employee is terminated without
cause, then, within 30 days of such event the Company shall pay to
Employee a single lump sum payment equal to all of the remaining salary
payable under this Agreement and shall vest any options that he holds
that are not vested and that have not otherwise been exercised or
terminated, provided, however, in the event Employee has accepted
full-time employment with any third party or has associated himself in
any capacity with a third party engaged in providing Services, the
Company may terminate this Agreement without vesting any options or
paying the remaining salary otherwise payable hereunder.
4. CONFIDENTIALITY.
a. As used herein, the term "Confidential Information" means any
information, technical data or know-how of the Company and the
other members of the Comfort Group, whether acquired during
the Term or prior to the Term in Employee's former capacity,
including, but not limited to, that which relates to
customers, business affairs, business plans, financial
matters, financial plans and projections, pending and proposed
acquisitions, operational and hiring matters, contracts and
agreements, marketing, sales and pricing, prospects of the
Comfort Group, and any information, technical data or know-how
that contain or reflect any of the foregoing, whether prepared
by the Company, any other member of the Comfort Group,
Employee or by any other person or entity; provided, however,
that the term "Confidential Information" shall not include
information, technical data or know-how that Employee can
demonstrate is generally available to the public not as a
result of any breach of this Agreement by Employee.
b. Except in the performance of Employee's duties as a Employee
to the Company, Employee will not, during or after the term of
Employee's engagement with the Company, disclose to any person
or entity or use, for any reason whatsoever, any Confidential
Information.
5. NON-COMPETITION.
a. Employee will not, during the Term and for a period of one
year following the Term, for any reason whatsoever, directly
or indirectly, on Employee's behalf or on behalf of or in
conjunction with any other person, company, partnership or
business of whatever nature:
(i) engage within one hundred miles of where the Comfort
Group conducts business (the "Territory") in any
capacity whatsoever for any business or person
engaged in Services;
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(ii) call upon any person who is an employee of the
Company or any other member of the Comfort Group for
the purpose of enticing such employee away from or
out of the employ of the Company or the Comfort
Group;
(iii) call upon any person which is, at that time, or which
has been, within the term of such Employee's
engagement, a customer of the Company or any other
member of the Comfort Group for the purpose of
selling Services; or
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of any competitor,
which candidate was called upon by Employee on behalf
of the Company or any other member of the Comfort
Group or for which an acquisition analysis was made
by Employee on behalf of the Company or any other
member of the Comfort Group for the purpose of
acquiring such entity.
b. It is agreed that the period during which this Section 4 shall
be effective shall be computed by excluding from such
computation of time any time during which Employee is in
violation of this Agreement.
6. RETURN OF COMPANY PROPERTY. All records, plans, manuals, "field
guides", memoranda, lists, documents, statements and other property
delivered to Employee by or on behalf of the Company or any other
member of the Comfort Group, by any customer of the Company or any
other member of the Comfort Group (including but not limited to, any
such customers obtained by Employee), by any acquisition candidate of
the Company or any other member of the Comfort Group, and all records
compiled by Employee which pertain to the business or activities of the
Company or any other member of the Comfort Group, whether acquired
during the Term or before the Term in Employee's prior capacity, shall
be and remain the property of the Company, and be subject at all times
to its discretion and control.
7. SEVERABILITY. The covenants set forth in this Agreement are severable
and separate, and the unenforceability of any specific covenant shall
not affect any other covenant or provision set forth herein. In the
event that any court of competent jurisdiction shall determine that any
covenant contained herein is unreasonable, it is the intention of the
parties that such restrictions be enforced to the fullest extent that
the court deems reasonable, and this Agreement shall thereby be
reformed.
8. SURVIVAL. The provisions and covenants of Sections 3, 4, 5, 6 and 7
shall survive termination of this Agreement.
9. SPECIFIC PERFORMANCE. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the covenants
contained in Sections 3, 4 and 5 and because of the immediate and
irreparable damage that could be caused to the Company for which it
would have no other adequate remedy, Employee agrees that the Company
shall be entitled to specific performance and that such covenants may
be enforced by the Company in the event of any breach or threatened
breach by Employee, by injunctions, restraining orders and other
appropriate equitable relief. Employee further agrees to waive any
requirement for the securing or posting of any bond.
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10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EMPLOYEE: COMPANY:
COMFORT SYSTEMS USA (TEXAS), L.P.
By: Comfort Systems USA G.P., Inc.
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Senior Vice President
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