EXHIBIT 10.2
William F. Murdy
COMFORT SYSTEMS USA, INC.
2000 EQUITY INCENTIVE PLAN
Restricted Stock Award Agreement
Comfort Systems USA, Inc.
777 Post Oak Blvd, 5th Floor
Houston, TX 77056
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 March
22, 2002, which is the date of grant of the Award.
2. Shares Subject to Award. The Award consists of 200,000 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 outstanding and 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 April 1, 2002 through March 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:
50,000 Shares on May 31, 2003;
an additional 50,000 Shares on March 22, 2004;
an additional 50,000 Shares on March 22, 2005; and
an additional 50,000 Shares on March 22, 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 June 27, 2000
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 AGREEMENT ARE ON FILE IN THE OFFICES
OF COMFORT SYSTEMS USA, INC.
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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,
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William F. Murdy
The foregoing Restricted Stock
Award Agreement is hereby accepted:
COMFORT SYSTEMS USA, INC.
By
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Its:
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