Exhibit
10.11


 


EMPLOYMENT
AGREEMENT


 


 


THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is made and entered into effective as of January 1, 2004 (the
“Effective Date”), by and between IESI Corporation, a Delaware corporation
(“IESI” or “Employer”), and Thomas L Brown (“Executive”).


 


WITNESSETH


 


WHEREAS, Employer desires to
employ Executive, and Executive desires to be employed by Employer, upon the
terms and subject to the conditions set forth in this Agreement;


 


NOW, THEREFORE, in consideration
of the mutual promises and covenants herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Employer and Executive, intending to be legally bound, agree as
follows:


 


1.                                      Employment - IESI hereby employs Executive as its Senior Vice President and Chief
Operating Officer upon the terms and conditions and for the compensation herein
provided. Executive hereby agrees to be so employed and to render the services
specified herein for Employer and any subsidiaries or affiliates of Employer.
In his capacity as its Senior Vice President and Chief Operating Officer of
Employer, Executive shall devote his full and undivided business time and
attention to his duties and responsibilities.


 


2.                                      Term of Employment - Subject to the provisions for termination as
provided in Section 5 hereof, the term of Executive’s employment hereunder (the
“Term”) shall be for a period commencing as of the Effective Date and
terminating December 31, 2005


 


3.                                      Duties and Powers - During the Term, Executive agrees as follows:
to devote his full and exclusive business time and attention to the business of
Employer and of any subsidiaries or affiliates of the Company including, but
not limited to, IESI Corporation (excluding reasonable vacations and sick leave
in accordance with Employer’s policies consistent with his position); to
perform all duties in a professional and prudent manner, to devote the best of
his skill, energy, experience and judgment to such duties; and to communicate
to Employer suggestions, ideas or information that may be helpful to Employer
in its businesses.  Executive shall have
all the powers and agrees to perform all of the duties associated with his
position as Senior Vice President and Chief Operating Officer of Employer, subject
to all lawful policies and guidelines as may be established by the Board of
Directors of Employer (the “Board”). 
Executive agrees not to engage in any other activity or own any interest
that would conflict with the interests of Employer or would interfere with his
responsibilities to Employer and the performance of his duties hereunder; provided,
however, that: (i) passive investment of less than 5% of the outstanding
securities of any company or any other investment that does not conflict with
Executive’s performance of his duties to Employer hereunder shall be deemed not
to violate this provision, it being understood that, except as set forth below,
an investment of more than 5% in a company other than Employer engaged in the
solid waste industry shall be deemed to conflict with Executive’s performance
of his duties hereunder; and (ii) Executive may


 

















 


engage
in activities involving charitable, educational, religious and similar types of
organizations, speaking engagements and similar type activities to the extent
that such other activities do not detract from the performance by Executive of
his duties and obligations hereunder.


 


4.                                      Compensation and Benefits - For all services rendered by Executive
pursuant to this Agreement, Employer shall compensate Executive as follows:


 


(a)                                  Base Compensation - In consideration of the full and faithful
performance by Executive of his obligations hereunder during the Term and
subject to the terms and conditions set forth herewith, Employer (or any
subsidiary or affiliate of Employer for which Executive also provides services
hereunder) shall pay to Executive $225,000 per annum (such annual compensation
as it may be increased from time to time shall be referred to herein as the
“Base Compensation”).  Executive’s Base
Compensation will be paid in accordance with Employer’s customary payroll
practices (but not less frequently than monthly) and will be prorated based
upon the number of days elapsed in any partial year. Base Compensation shall be
reviewed annually and may be increased at the sole discretion of the Board.


 


(b)                                 Bonus
- In addition to the Base Compensation payable to Executive, Executive may be
awarded performance bonuses from time to time, in the sole discretion of the
Board.


 


(c)                                  Benefits - Vacation.  During the Term,
Executive shall be entitled to such benefits (including health, dental and
disability coverage, life insurance, 401K, holiday and sick days) as Employer
may, from time to time, make available to its executive employees. Executive
shall be entitled to three (3) weeks paid vacation during each calendar year of
employment, with such vacation allowance being prorated in respect of any
employment period of less than 12 full months. 
Notwithstanding the foregoing, Executive shall not be entitled to take
more than two weeks of vacation leave at any one time. Unused vacation shall
not be carried forward.


 


(d)                                 Expenses – Executive shall be entitled to reimbursement for his ordinary and
necessary business expenses, incurred in the performance of his duties under
this Agreement if supported by reasonable documentation as required by Employer
in accordance with its usual practices.


 


(e)                                  Car Allowance - During the Term, Executive shall be entitled to a car allowance of
$700 per month.  Executive shall be
responsible for all costs associated with such car (other than fuel expenses
reimbursable under Section 4(d) hereof).


 


(f)                                    Liability for Taxes - Employer shall have no liability for any tax
obligation of Executive attributable to any payment made under this Agreement
except for customary federal and state withholding taxes (e.g., social
security, Medicare, etc.).  Employer may
withhold from any such payment such amounts as may be required by applicable
provisions of the Internal Revenue Code, other tax laws, and the rules and
regulations of the Internal Revenue Service and other tax agencies, as in
effect at the time of any such payment.


 


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5.                                      Expiration/Termination of Employment


 


(a)                                  Expiration at End of Term - Unless earlier terminated in accordance with
the terms of this Agreement, Executive’s employment shall expire at the end of
the Term.


 


(b)                                 Termination at Will - The parties acknowledge and agree that
Executive’s employment hereunder is an employment at will.  Notwithstanding any other provision
contained in this Agreement, either Executive or Employer may terminate
Executive’s employment hereunder at any time with or without Cause (as defined
in subsection 5(e)(i)) or for Good Reason (as defined in subsection 5(e)(ii))
at his election upon prior written notice (a “Termination Notice”) to the
other.  A Termination Notice shall be
effective upon delivery to the other party and the termination shall be
effective as of the date set forth in such Termination Notice (hereinafter, the
“Termination Date”).


 


(c)                                  Effect of Expiration or Termination For Cause or
Without Good Reason - Upon the
expiration of this Agreement pursuant to subsection 5(a) hereof or upon a
termination of this Agreement pursuant to subsection 5(b) hereof by Employer
with Cause or by Executive without Good Reason, Executive shall be entitled to
payment of: (i) Base Compensation through the Termination Date; (ii) amounts
accrued under benefit plans in which Executive is a participant as of the Termination
Date.


 


(d)                                 Effect Of Termination Without Cause or For Good Reason - Upon the termination of this Agreement
pursuant to subsection 5(b) hereof by Employer without Cause or by Executive
for Good Reason, Executive shall be entitled to payment of: (i) Base
Compensation (at the rate in effect on the date of such termination) and all
benefits under Section 4(c) hereof for 24 months; and (ii) amounts accrued
under benefit plans in which Executive is a participant as of such termination
date..


 


(e)                                  Effect Of Termination Following a Change of
Control - Notwithstanding any
other provision in this Agreement to the contrary, following a Change in
Control as defined in Section 6 hereof, (a) if Executive chooses to terminate
his employment without Good Reason pursuant to Section 5(b) hereof, such
termination shall be treated as termination under Section 5(c) hereof; (b) if
Employer (or its successor) terminates Executive’s employment without Cause
pursuant to Section 5(b) hereof, such termination shall be treated as a
termination under Section 5(d) hereof, except that Executive shall receive Base
Compensation and benefits for the “Payout Period” (as defined below).  For the purposes of this Agreement, “Payout
Period” shall mean two (2) years and includes Base Compensation for each year,
bonus (equal to 33 % of Base Compensation, times 2 years) and benefits.  If a Change in Control as defined in Section
6 occurs within 6 months after Executive has been terminated Without Cause or
For Good Reason, then termination shall be treated as a termination following a
Change of Control, and Executive shall receive Base Compensation, bonus and
benefits as defined by the “Payout Period”.


 


(f)                                    Definitions of “Cause” and “Good Reason” - For purposes of this Agreement, the terms “Cause”
and “Good Reason” shall have the following meanings:


 


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(i)                                     “Cause” shall mean (1) the failure of Executive
to perform his duties with Employer (other than any such failure resulting from
death or the inability of Executive to perform the essential functions of his
job, with or without a reasonable accommodation) or the material breach of this
Agreement by Executive if Employer gives notice of such cause and it remains
uncured for ten (10) days following such notice; (2) any act by Executive of
fraud or dishonesty with respect to any aspect of Employer’s business; (3) drug
or alcohol abuse or related behavior that impedes Executive’s job performance
or brings Executive or Employer into disrepute in the community; (4)
misappropriation of funds or any corporate opportunity: (5) a conviction or
affirmative finding by an appropriate administrative agency that Executive is
guilty of a felony or crime of moral turpitude (or a plea of nolo contendere
thereto); (6) acts by Executive attempting to secure or securing any personal
profit not fully disclosed to and approved by the Board in connection with any
transaction entered into on behalf of Employer; or (7) gross, willful or wanton
negligence or misconduct by Executive.


 


(ii)                                  “Good Reason” shall mean (1) a material and
adverse change in Executive’s status or position as an officer of Employer or a
material reduction in the duties and responsibilities previously exercised by
Executive, or any removal of Executive from or any failure to reappoint or
reelect Executive to such position, except in connection with the termination
of Executive’s service as an officer for Cause, or as a result of Executive’s
death or inability to perform the essential functions of his job, with or
without a reasonable accommodation, or (2) a reduction (other than for Cause)
by Employer in Executive’s Base Compensation as of the date hereof, or (3) a
relocation of Executive’s assigned place of employment outside the Dallas/Fort
Worth Standard Metropolitan Statistical Area without Executive’s consent, or
(4) a Change of Control.


 


(f)                                    Upon the termination of this Agreement by
Employer with Cause or by Executive without Good Reason, Employer shall have
the option, exercisable within ninety (90) days after the termination date, to
purchase all stock of Employer then owned by Executive at fair market value on
the date of termination, which shall be determined in good faith by the
Board.  In the event that Executive
disagrees with the Board’s determination of fair market value, it shall be
determined by an independent certified public accountant selected by the
Board.  Payment for such stock shall, at
Employer’s option, be in cash or by promissory note in the amount of the fair
market value, bearing interest at 10% annum, and payable in no more than three
equal annual installments of principal, together with accrued interest.


 


(g)                                 Upon the termination of this Agreement by
Employer without Cause or by Executive with Good Reason, Executive shall have the
option, exercisable within ninety (90) days after the termination date, to
require Employer to purchase all stock of Employer then owned by Executive, the
valuation and payment terms to be determined as set out in (f) above.  Executive (or his duly designated personal
representative or executor) shall have the same option to require Employer to
purchase Executive’s stock in the event of Executive’s


 


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death or permanent disability. 
Such option must be exercised by notice to Employer within ninety (90)
days after Executive’s death or permanent disability.


 


(h)                                 Notwithstanding any provision to the contrary in
any of the Company’s stock option plans or agreements, in the event of
Executive’s permanent disability or death, any and all stock options that have
been granted to Executive by the Company shall be exercisable by Executive
and/or his successor, assigns, administrators or executors during the ten years
(plus any replacement options and or time extensions to the existing options)
that said stock option(s) are outstanding.


 


6.                                      Change in Control is defined as:


 


For purposes of this Plan, a Change in Control shall be
deemed to have occurred if:


 


(a)                                  a tender offer (or series of related offers)
shall be made and consummated for the ownership of 50% or more of the
outstanding voting securities of the Employer;


 


(b)                                 the Employer shall be merged or consolidated with
another corporation and as a result of such merger or consolidation less than
50% of the outstanding voting securities of the surviving or resulting
corporation shall be owned in the aggregate by the former shareholders of the
Company, any employee benefit plan of the Company or its subsidiaries, and
their affiliates;


 


(c)                                  the Employer shall sell substantially all of its
assets to another corporation that is not wholly owned by the Company; or


 


(d)                                 a Person (as defined below) shall acquire 50% or
more of the outstanding voting securities of the Company (whether directly,
indirectly, beneficially or of record).


 


For purposes of this Section, ownership of voting
securities shall take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)I)(i) (as in effect on the date hereof)
under the Exchange Act.  Also for purposes
of this Section 6(b), Person shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof;
however, a Person shall not include (1) the Employer or any of its
subsidiaries; (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries; (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities; or (4) a corporation owned, directly or indirectly, by the
shareholders of the Employer in substantially the same proportion as their
ownership of stock of the Company.


 


7.                                      Non-Interference, Non-Solicitation and
Non-Competition Covenants


 


(a)                                  Pursuant to this Agreement, Executive has agreed
to become Senior Vice President and Chief Operating Officer of Employer and to
comply with a non-disclosure provision in


 


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Section
8. Executive recognizes and acknowledges that he will be given access to
certain of Employer’s Confidential Information (as hereafter defined in Section
9(a)), and have access to and authority to develop relationships with customers
of Employer because of his position and status as an Employer’s Senior Vice
President and Chief Operating Officer, which he would not otherwise
attain.  In consideration of the
foregoing, Executive agrees to comply with the terms of this Section 7.


 


(b)                                 The
restraints imposed by this Section 7 shall apply during any period that
Executive continues to receive payment of Base Compensation hereunder, and for
a period of one year thereafter (the “Restricted Period”).  Notwithstanding any other provision in this
Agreement, if Employer terminates Executive’s employment under Section 5(e)
following a Change in Control, the Restricted Period shall extend for a period
ending one year after the Payout Period. 
In the event that any Court having jurisdiction should find that the
Restricted Period is so long and/or the scope (distance) (as set forth below)
is so broad as to constitute an undue hardship on Executive, then, in such
event only, the Restricted Period and area limitations shall be valid for the
maximum time and area for which they could be legally made and enforced.


 


(c)                                  During
the Restricted Period, Executive shall not, as an executive (other than an
executive of Employer or an affiliate thereof), employee, employer,
stockholder, officer, director, partner, consultant, advisor, proprietor,
lender, provider of capital or other ownership, operational or management capacity,
directly or indirectly, (i) solicit or hire any employee of Employer or
otherwise interfere with or disrupt the employment relationship between
Employer and any employee, (ii) solicit or do business with (a) Employer’s
customers with whom Employer did business while Executive was employed under
this Agreement or (b) individuals or entities whom Executive met as a result of
his position with Employer while Executive was employed under this Agreement,
that results in competition with Employer in any county, parish or other
comparable jurisdiction within a state, province or nation located in North
America in which any of such customers have operations (other than customers
whose business relationship with Employer has terminated for at least 90 days)
or in which Employer has conducted business while Executive was employed under
this Agreement (collectively, the “Restricted Area”), or (iii) be associated
with any entity engaged in the business of non-hazardous waste disposal in the
Restricted Area that results in competition with Employer (but excluding
association due to ownership of less than 5% of the outstanding securities of
any such entity).


 


(d)                                 Executive
expressly recognizes and agrees that the restraints imposed by this Section 7
are (i) reasonable as to time, geographic limitation and scope of activity to
be restrained; (ii) reasonably necessary to the enjoyment by Employer of the
value of its assets and to protect its legitimate interests; and (iii) not
oppressive.  Executive further expressly
recognizes and agrees that the restraints imposed by this Section 7 represent a
reasonable and necessary restriction for the protection of the legitimate
interests of Employer, that the failure by the Executive to observe and comply
with the covenants and agreements in this Section 7 will cause irreparable harm
to Employer, that it is and will continue to be difficult to ascertain the harm
and damages to Employer that such a failure by the Executive would cause, that
the consideration received by the Executive for entering into these covenants
and


 


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agreements is
fair, that the covenants and agreements and their enforcement will not deprive
Executive of his ability to earn a reasonable living in the waste disposal
field or otherwise, and that Executive has acquired knowledge and skills in his
field that will allow him to obtain employment without violating these
covenants and agreements. Executive further expressly acknowledges that he has
been encouraged to and has consulted independent counsel, and has reviewed and
considered this Agreement with that counsel before executing this Agreement.


 


8.                                      Memoranda, Notes, Records, Etc. - All memoranda, notes, records, customer lists
or other documents made or compiled by Executive or otherwise made available to
him concerning the business of Employer or its subsidiaries or affiliates shall
be Employer’s property and shall be delivered to Employer upon the expiration
or termination of Executive’s employment hereunder or at any other time upon
request by Employer, and Executive shall retain no copies of those
documents.  Executive shall never at any
time have or claim any right, title or interest in any material or matter of
any sort prepared for or used in connection with the business or promotion of
Employer.


 


9.                                      Nondisclosure


 


(a)                                  Executive hereby acknowledges that in connection
with his employment by Employer he will be exposed to and may obtain certain
information (including, without limitation, procedures, memoranda, notes,
records and customer and supplier lists whether such information has been or is
made, developed or compiled by Executive or otherwise has been or is made
available to him) regarding the business and operations of Employer and its
subsidiaries or affiliates.  Executive
further acknowledges that such information and procedures are unique, valuable,
considered trade secrets and deemed proprietary by Employer.  For purposes of this Agreement, such
information and procedures shall be referred to as “Confidential Information,”
except that the following shall not be considered Confidential Information: (i)
information disclosed on a non-confidential basis to third parties by Employer
(but not by Executive in violation of this Agreement), (ii) information released
from confidential treatment by written consent of Employer, and (iii)
information lawfully available to the general public.


 


(b)                                 Executive agrees that all Confidential
Information is and will remain the property of Employer.  Executive further agrees, for the duration
of the Term and thereafter, to hold in the strictest confidence all
Confidential Information, and not to, directly or indirectly, duplicate, sell,
use, lease, commercialize, disclose or otherwise divulge to any person or
entity any portion of the Confidential Information or use any Confidential
Information for his own benefit or profit or allow any person, entity or third
party, other than Employer and authorized Executives of the same, to use or
otherwise gain access to any Confidential Information.


 


(c)                                  It is the intention of the parties that to the
extent any Confidential Information may constitute a “trade secret” as defined
by Texas common law, then, in addition to the remedies set forth in this
Agreement, Employer may elect to bring an action against


 


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Executive in the case of any actual or threatened misappropriation of
any such trade secret by Executive.


 


(d)                                 Regardless of whether any of the Confidential
Information or any of the items set forth in Section 8 and this Section 9
constitute a trade secret as defined by Texas common law, Executive expressly
recognizes and agrees that the restrictions contained in Section 8 of this
Agreement and this Section 9 represent a reasonable and necessary protection of
the legitimate interests of Employer, that his failure to observe and comply
with his covenants and agreements in those Sections will cause irreparable harm
to Employer, that it is and will continue to be difficult to ascertain the harm
and damages to Employer that such a failure by Executive could cause, and that
a remedy at law for such failure by Executive will be inadequate.


 


10.                               Enforcement - The parties hereto recognize that the covenants of Executive
hereunder are special, unique and of extraordinary character.  Accordingly, it is the intention of the
parties that, in addition to any other rights and remedies which Employer may
have in the event of any breach of said Sections, Employer shall be entitled,
and hereby is expressly and irrevocably authorized by Executive, inter  alia,
to demand and obtain specific performance, including without limitation
temporary and permanent injunctive relief, and all other appropriate equitable
relief against Executive in order to enforce against Executive, or in order to
prevent any breach or any threatened breach by Executive of, the covenants and
agreements contained herein. In case of any breach of this Agreement, nothing
herein contained shall be construed to prevent Employer from seeking such other
remedy in the courts as it may elect or invoke.


 


11.                               Delegation of Duties and Assignment of Rights


 


(a)                                  Executive may not delegate the performance of any
of his obligations or duties hereunder, or assign any rights hereunder, without
the prior written consent of Employer. Any such purported delegation or
assignment in the absence of such written consent shall be null and void with
no force or effect.  Notwithstanding the
foregoing, nothing herein shall prevent Executive from delegating ministerial tasks
to assistants of the type that are normally assigned by executives to
assistants.


 


(b)                                 Employer may not assign this Agreement except
with the prior written consent of Executive, except that Employer may without
Executive’s consent assign all of its rights and obligations under this
Agreement to the person or entity acquiring a majority of the assets or
outstanding stock of IESI or pursuant to a merger or consolidation of
IESI.  In the event of such an
assignment by Employer, each reference in this Agreement to Employer shall  include  the
assignee from and after the date of such assignment.


 


(c)                                  In the event of a valid assignment pursuant to
this Section 11, this Agreement shall be binding on and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and
permitted assigns and any receiver, trustee in bankruptcy or representative of
the creditors of each such person.


 


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12.                               Survival of Covenants - Notwithstanding anything contained in this
Agreement, upon the expiration of the Term or the Restricted Period, as
applicable, or in the event Executive’s employment is terminated for any reason
whatsoever, the covenants and agreements of Executive contained in Sections 7 (to
the extent set forth therein), 8, 9, 10 and 12 and the covenants of Employer
contained in Section 5 hereof shall survive any such expiration or termination
and shall not lapse except as provided herein.


 


13.                               Warranty - Executive does hereby warrant that he has not taken any action, and
covenants that during the Term of this Agreement, or the Restricted Period, as
applicable, he shall take no such action, that constitutes or will constitute a
breach of any agreement concerning confidential information and trade secrets,
confidentiality, solicitation or non-competition to which he is bound as a
party.


 


14.                               Severability /Modification - If any term or provision of this Agreement is
held or deemed to be invalid or unenforceable in whole or in part, by a court
of competent jurisdiction, such term or provision shall be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement.


 


15.                               Governing Law - This agreement is entered into in Texas, and
the construction, validity and interpretation of this agreement shall be
governed by the laws of the State of Texas without regard to the laws of
conflicts of laws.


 


16.                               Effectiveness; Entire Agreement; Amendment - This Agreement contains the entire
understanding and agreement between the parties relating to the subject matter
hereof and, upon the execution hereof, that certain Change of Control Agreement
dated March 7, 2001 between IESI Corporation and Executive is terminated and
cancelled.  Neither this Agreement nor
any provision hereof may be waived, modified, amended, changed, discharged or
terminated, except by an agreement in writing signed by the party against whom
enforcement of any waiver, modification, change, amendment, discharge or
termination is sought.


 


17.                               Notices - Any notice required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of delivery if delivered personally to the party to whom notice is
to be given (or to the appropriate address below), or on the third day after
mailing if mailed to the party to whom notice is to be given by certified or
registered mail, return receipt requested, postage prepaid, or by courier,
addressed as follows, or to such other person at such other address as any
party may request in writing to the other party to this Agreement:


 


	
   

  	
  To Executive:

  	
   

  	
  Thomas L. Brown

  
	
   

  	
   

  	
   

  	
  502 Glenwick Court

  
	
   

  	
   

  	
   

  	
  Trophy Club, TX 76262

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  To IESI:

  	
   

  	
  IESI Corporation

  
	
   

  	
   

  	
   

  	
  2301 Eagle Parkway, Suite 200

  
	
   

  	
   

  	
   

  	
  Ft. Worth, Texas
  76177

  



 


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Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner set
forth above.


 


18.       Headings - The section headings herein are for convenience only and shall not
be used in interpreting or construing this Agreement. 


 


IN WITNESS WHEREOF, the parties
hereto have executed this Employment Agreement to be effective as of the
Effective Date.


 


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas L.
  Brown

  
	
   

  	
  THOMAS L. BROWN

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYER:

  
	
   

  	
   

  
	
   

  	
  IESI CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/
  Jeffrey J. Keenan

  
	
   

  	
   

  	
  JEFFREY J. KEENAN

  
	
   

  	
   

  	
  CHAIRMAN

  



 


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