Exhibit
10.13


 


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 P. Lawrence McGee (“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
Development 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 Development
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 Development 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 $205,000 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 Development Officer of Employer and to comply with a non-disclosure
provision


 


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in 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 Development 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 Employment Offer Letter dated
January 13, 1999 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:

  	
   

  	
  P. Lawrence McGee

  
	
   

  	
   

  	
  4241 Oak Park Court

  
	
   

  	
   

  	
  Fort Worth, Texas 76109

  
	
   

  	
   

  	
   

  
	
  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/ P. Lawrence McGee

  
	
   

  	
  P.
  LAWRENCE MCGEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYER:

  
	
   

  	
   

  	
   

  
	
   

  	
  IESI CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
  /s/ Jeffrey J. Keenan

  
	
   

  	
   

  	
  JEFFREY
  J. KEENAN

  
	
   

  	
   

  	
  CHAIRMAN

  



 


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