AMENDMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT (the "Amendment") is made and entered into as of
September 30, 2004, by and between IESI Corporation, a Delaware corporation
("IESI" or the "Employer") and Xxxxxxx X. Xxxxx (the "Executive").
WITNESSETH
WHEREAS, the Employer and the Executive have entered into an Employment
Agreement dated as of January 1, 2004 (the "Employment Agreement"); and
WHEREAS, the Employer and the Executive have agreed to amend the
Employment Agreement upon the terms and conditions contained herein.
NOW THEREFORE, in consideration of the promises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Capitalized terms used but not defined herein shall have the
meanings set forth in the Employment Agreement.
2. The following is hereby added to the Employment Agreement as Section
4(g):
"(g) Non-Qualified Option Grant upon IPO
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(i) IESI shall grant to the Executive, as of the
consummation of a firm commitment underwritten initial public
offering (an "IPO") of IESI's Class A Voting Common Stock (the
"Common Stock"), options to purchase an aggregate of 35,000
shares of Common Stock (such amount to be adjusted for any
stock split, dividend or other recapitalization event
immediately prior to an IPO) (hereinafter called the "IPO
Options") if such IPO is consummated prior to January 1, 2005.
The IPO Options shall be granted pursuant to, and be governed
by, the terms and provisions of the IESI 1999 Stock Option
Plan or any other option plan for executive officers of IESI
(each as amended from time to time, the "Plan") and the
Employer's standard Non-Qualified Stock Option Agreement (the
"Option Agreement"), subject to the terms set forth herein.
Each IPO Option shall have an exercise price equal to the
price per share that the shares of IESI's Common Stock are
offered to the public in the IPO. The IPO Options shall be
fully vested and exercisable with respect to 25% of the shares
underlying the IPO Options on each of January 1, 2005, 2006,
2007 and 2008, respectively. Notwithstanding any other
provision of the Employment Agreement to the contrary, IESI's
obligation to grant the IPO Options to the Executive shall
terminate on the first to occur of the following: (A) the
occurrence of a Change in Control, (B) the termination of the
Executive's employment by either IESI for Cause or the
Executive without Good Reason or (C) January 1, 2005 if no IPO
has been consummated prior to such date.
(ii) The Executive agrees that, upon an IPO and if
requested by IESI and any underwriter engaged by IESI for a
reasonable period of time specified by IESI or such
underwriter following the effective date of the registration
statement filed with respect to such IPO, the Executive will
not, directly or indirectly, offer, sell, pledge, contract to
sell (including any short sale), grant any option to purchase,
or otherwise dispose of any shares of IESI held by the
Executive (except for any securities sold pursuant to such
registration statement) or enter into any "Hedging
Transaction" (as defined below) relating to any securities of
IESI held by the Executive (including, without limitation,
pursuant to Rule 144 under the Act or any successor or similar
exemptive rule hereinafter in effect). Notwithstanding the
foregoing, such period of time shall not exceed one hundred
eighty (180) days. For purposes of this Section, "Hedging
Transaction" means any short sale (whether or not against the
box) or any purchase, sale or grant of any right (including,
without limitation, any put or call option) with respect to
any security (other than a broad-based market basket or index)
that includes, relates to or derives any significant part of
its value from the IPO Options or the shares of IESI held by
the Executive."
3. Section 5(h) of the Employment Agreement is hereby amended and
restated in its entirety:
"Notwithstanding any provision to the contrary in any
of the Employer's stock option plans or agreements, in the
event of Executive's death or permanent disability or upon
termination of this Agreement by Employer without Cause or by
Executive with Good Reason (each, a "Trigger Event"): (A) any
and all stock options that have been granted to Executive by
the Employer shall be exercisable pursuant to their terms by
Executive and/or his successor, assigns, administrators or
executors during the ten years (plus any replacement options
or time extensions to the existing options) that such stock
options are outstanding and (B) upon any Trigger Event
occurring during the Term and prior to an IPO, the Employer
shall grant to the Executive (or his successor, assigns,
administrators or executors in the case of Executive's death)
the IPO Options. The IPO Options shall be granted pursuant to,
and be governed by, the terms and provisions of the Plan and
the Option Agreement, subject to the terms set forth in
Section 4(g) hereof. Notwithstanding any provision set forth
in the Plan or the Option Agreement to the contrary, the IPO
Option shall expire in its entirety on the tenth anniversary
of the applicable event. "
4. The first phrase of Section 6 of the Employment Agreement shall be
amended and restated as follows: "For purposes of this Agreement, Change of
Control shall be deemed to have occurred if:"
5. The following language shall be added to the end of Section 6 of the
Employment Agreement:
"For purposes of this Agreement, a "Change of
Control" shall not include an IPO of the Common Stock or any
person or group which may be deemed to have acquired control
immediately following such IPO."
6. Except as expressly provided herein, all other terms and conditions
of the Employment Agreement shall remain in full force and effect.
7. This Amendment shall be governed by and construed in accordance with
the laws of the State of Texas (determined without regard to the conflict of law
provisions thereof).
8. This Amendment may be executed by the parties hereto in
counterparts, each of which shall be deemed an original, but both such
counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the day and year first written above.
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
EMPLOYER:
IESI CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxx
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NAME: XXXXXXX X. XXXXXX
TITLE: CHAIRMAN
