IESI CORPORATION
1999 Stock Option Plan
Non-Qualified Stock Option Agreement
January 1, 2004
To: Xxxxxxx X. Xxxxx
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Employee/Optionee
This Agreement confirms the grant of an option to you effective as of
January 1, 2004 (the "Effective Date") under the IESI Corporation 1999 Stock
Option Plan (as amended, the "Plan"), upon the terms and conditions described
herein. A copy of the Plan is being furnished to you concurrently with the
execution of this Agreement.
1. Grant of Option.
1.1 Pursuant to action of the Committee under the Plan, IESI
Corporation (the "Company") hereby grants to you an option to purchase
(hereinafter called the "Option"), subject to the terms and conditions
hereinafter set forth, an aggregate of 14,670 shares of the Class A
Voting Common Stock (the "Common Stock") of the Company (the "Option
Shares") at a per share purchase price equal to One Hundred Dollars
($100.00) (the "Exercise Price"). This grant is a matter of separate
inducement and is not in lieu of salary or other compensation for your
services.
1.2 The number of Option Shares and the Exercise Price shall be
adjusted by the Committee, and you shall be entitled to such
adjustment, upon the occurrence of any event described in Section 5 of
the Plan. An equitable adjustment shall be determined by the Committee
in good faith.
2. Exercise and Term of the Option.
2.1 Upon consummation of a firm commitment underwritten initial public
offering (an "IPO") prior to January 1, 2005, the Option shall expire
in its entirety and be null and void.
2.2 Unless accelerated under paragraph 2.3 below or terminated pursuant
to paragraph 2.1 above, this Option should become vested and fully
exercisable on the eighth anniversary of the Effective Date.
2.3 Notwithstanding the foregoing, the Option shall become fully vested
and exercisable upon a Change in Control (as defined in your employment
agreement in effect at such time). In the event that neither a Change
in Control nor an IPO occurs prior to January 1, 2005, upon the
effective date for the filing of a Registration Statement on Form S-1
for an IPO after January 1, 2005 (the "Second IPO"), the exercisability
of the Option shall be accelerated with respect to an additional 25% of
the Option Shares on each January 1 after the Effective Date (including
each January 1 occurring prior to the Second IPO).
2.4 In the event of your death or permanent disability or upon
termination of your employment by the Company without Cause (as defined
in your employment agreement in effect at such time) or by you with
Good Reason (as defined in your employment agreement in effect at such
time), this Option shall be exercisable pursuant to its terms by you
(or your successor, administrator or executors in the case of your
death) during the ten years (plus any replacement options or time
extension to the Option) that this Option is outstanding.
3. Certain Exercise Requirements.
3.1 If fewer than the number of Option Shares then available for
purchase pursuant to the Option are purchased at any time under this
Agreement, you may purchase the remaining Option Shares at any
subsequent time during the term of the Option. The Option shall expire
in its entirety on the tenth anniversary of the Effective Date subject
to earlier termination or expiration as herein provided. The Option
shall not be exercised for fractional shares. Notation of any partial
exercise will be made by the Company on Schedule 1 attached hereto.
3.2 The Option is exercisable by you only while you are in the employ
of, or providing service to, the Company or its subsidiaries as an
employee, member of the Board or advisor or consultant, except as
otherwise provided in the Plan.
4. Method of Exercise and Payment.
4.1 Exercise of the Option shall be by written notice, in a form
substantially as attached to this Agreement as Exhibit A, delivered or
mailed to the Secretary of the Company at its principal office
specifying the number of Option Shares as to which the Option is being
exercised, and identifying the Option by date of grant. Such notice
shall be accompanied by the full amount of the Exercise Price for the
Option Shares to be purchased in cash or by certified check, or by
delivery of whole shares of Common Stock owned by you for at least six
months ("Purchased Stock") in full or partial payment of the Exercise
Price. You will receive a credit against the purchase price of the
Option Shares as to which the Option is being exercised equal to the
Fair Market Value of such Purchased Stock as of the close of the
business day immediately preceding the date of delivery of the notice
of election to exercise the Option. Any Purchased Stock being delivered
must be accompanied by a duly executed assignment to the Company in
blank or with stock powers attached, together with a written
representation that such shares of Purchased Stock are owned by you
free and clear of all liens, claims and encumbrances and such other
representations as the Company shall determine. Only whole shares of
Purchased Stock with a Fair Market Value up to, but not exceeding, the
Exercise Price of the Option Shares as to which the Option is being
exercised will be accepted hereunder. Purchased Stock may be delivered
at the office of the Company or at the offices of the transfer agent
appointed for the transfer of shares of the Company. The Committee may,
in its discretion, refuse to accept any tendered payment in the form of
Purchased Stock, in which case it shall deliver the tender back to you
and notify you of its refusal. In order to preserve your rights under
any Option, you must, within three business days after such
notification, tender to the Company the cash or certified check
required to pay for the Option Shares with respect to which such Option
is being exercised.
4.2 It shall be a condition to the Company's obligation to deliver the
Option Shares upon exercise of any portion of the Option that you pay,
or make provisions satisfactory to the Company, for the payment of any
taxes which the Company or any subsidiary is obligated to withhold or
collect with respect to such exercise or otherwise with respect to the
Option.
5. Transferability. Except as provided herein, your rights under the Option may
not be transferred or encumbered by transferred by you, except by will or the
laws of descent and distribution, or pursuant to a qualified domestic relations
order (as defined in Section 414(p) of the Code).
6. Registration. The Company shall not be obligated to file any registration
statement under the Act or any applicable state securities laws to permit
exercise of the Option or to issue any Option Shares in violation of the Act or
any applicable state securities laws. Certificates for Option Shares, when
issued, shall have substantially the following legend, or statements of other
applicable restrictions, endorsed thereon, and may not be immediately
transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED
FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF
UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE
ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH
OFFER, SALE, PLEDGE TRANSFER OR OTHER DISPOSITION WILL NOT
VIOLATE APPLICABLE FEDERAL OR STATE LAWS.
The foregoing legend may not be required for Option Shares issued
pursuant to an effective registration statement under the Act and in accordance
with applicable state securities laws.
7. Incorporation of Plan Provisions. This Agreement is made pursuant to the Plan
and is subject to all the terms and provisions of the Plan as if the same were
fully set forth herein. Capitalized terms not otherwise defined herein shall
have the meanings set forth for such terms in the Plan.
8. Shareholder Rights. You shall not be, nor have any of the rights or
privileges of, a holder of Common Stock in respect of any Option Shares
purchasable upon the exercise of the Option, including any rights regarding
voting or payment of dividends, unless and until a certificate representing such
Option Shares has been delivered to you.
9. Miscellaneous. This Agreement: (a) shall be binding upon and inure to the
benefit of any successor of the Company and your successors, assigns and estate,
including your executors, administrators and trustees; (b) shall be governed by
the laws of the State of Delaware and any applicable laws of the United States;
and (c) may not be amended except in writing and signed by both parties hereto.
It is your intent and that of the Company that this Option is not
classified as an "incentive stock option" within the meaning of Section 422(b)
of the Code, and that any ambiguities in construction shall be interpreted in
order to effectuate such intent.
To confirm your acceptance of the foregoing, please sign and return one
copy of this Agreement to Xxxxxx X. Xxxxx, Senior VP and CFO, IESI Corporation.
AGREED AND ACCEPTED
JANUARY 1, 2004
/s/ Xxxxxxx X. Xxxxx IESI CORPORATION
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Employee/Optionee
Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Print Employee/Optionee Name Xxxxxxx X. Xxxxxx
Chairman
EXHIBIT A
IESI CORPORATION
Stock Option Exercise Form
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(Date)
IESI Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Senior VP and CFO
Dear Sir/Madam:
The undersigned elects to exercise the Option to purchase ______ shares
of the Class A Voting Common Stock of IESI Corporation (the "Company") under and
pursuant to the Non-Qualified Stock Option Agreement (the "Agreement") between
the Company and the undersigned dated as of January 1, 2004.
Delivered herewith in payment of the option price is:
1. a check in the amount of $_____ and/or
2. certificates for ___ shares of common stock of the
Company, valued at $___________ with appropriate
stock powers attached thereto, which shares are owned
by the undersigned free and clear of all liens,
claims and encumbrances.
If the shares of the Company's Class A Voting Common Stock to be
delivered to the undersigned upon this Option exercise are not subject to a
current registration statement filed under the Securities Act of 1933, as
amended (the "Act"), I hereby represent and agree that all of the shares of
common stock being purchased hereunder are being acquired for investment and not
with the view to the sale or distribution thereof, and that I understand that
such shares of common stock are not currently registered under the Act and may
not be sold, pledged, hypothecated, alienated or otherwise assigned or
transferred in the absence of registration under the Act or an opinion of
counsel, which opinion is satisfactory to the Company to the effect that such
registration is not required.
I hereby authorize the Company or any subsidiary corporation by which I
am employed to withhold from any cash compensation paid to me, or in my behalf,
an amount sufficient to discharge any Federal, State and local wage withholding
taxes imposed on the Company, or the subsidiary corporation by which I am
employed, in respect of my Option exercise of the Option. I agree that the
Company, or the subsidiary corporation by which I am employed, may, in its
discretion, hold the stock certificate to which I am entitled upon exercise of
the Option, as security for the payment of the aforementioned withholding tax
liability, until cash sufficient to pay that liability has been accumulated.
Sincerely,
Employee/Optionee
Print Employee/Optionee Name
SCHEDULE 1
NOTATION AS TO PARTIAL EXERCISE
Number of Balance of Company Secretary
Date of Shares Shares on or Ass't Secretary Notation
Exercise Purchased Option Signature Date
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