**Exhibit10.13**

 

**EMPLOYMENTAGREEMENT**

 

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

 

NOW, THEREFORE, inconsideration of the mutual promises and covenants herein set forth and othergood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, Employer and Executive, intending to be legally bound,agree as follows:

 

**1.****                                      Employment**- IESI hereby employs Executive as its Senior Vice President and ChiefDevelopment Officer upon the terms and conditions and for the compensationherein provided. Executive hereby agrees to be so employed and to render theservices specified herein for Employer and any subsidiaries or affiliates ofEmployer. In his capacity as its Senior Vice President and Chief DevelopmentOfficer of Employer, Executive shall devote his full and undivided businesstime and attention to his duties and responsibilities.

 

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

 

**3.****                                      Duties andPowers** - During the Term, Executive agrees as follows: to devote hisfull and exclusive business time and attention to the business of Employer andof any subsidiaries or affiliates of the Company including, but not limited to,IESI Corporation (excluding reasonable vacations and sick leave in accordancewith Employer’s policies consistent with his position); to perform all dutiesin a professional and prudent manner, to devote the best of his skill, energy,experience and judgment to such duties; and to communicate to Employersuggestions, ideas or information that may be helpful to Employer in itsbusinesses.  Executive shall have allthe powers and agrees to perform all of the duties associated with his positionas Senior Vice President and Chief Development Officer of Employer, subject toall lawful policies and guidelines as may be established by the Board ofDirectors of Employer (the “Board”). Executive agrees not to engage in any other activity or own any interestthat would conflict with the interests of Employer or would interfere with hisresponsibilities to Employer and the performance of his duties hereunder; provided,however, that: (i) passive investment of less than 5% of the outstandingsecurities of any company or any other investment that does not conflict withExecutive’s performance of his duties to Employer hereunder shall be deemed notto 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 thesolid waste industry shall be deemed to conflict with Executive’s performanceof his duties hereunder; and (ii) Executive may

 

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engage in activitiesinvolving charitable, educational, religious and similar types oforganizations, speaking engagements and similar type activities to the extentthat such other activities do not detract from the performance by Executive ofhis duties and obligations hereunder.

 

**4.****                                      Compensationand Benefits** - For all services rendered by Executive pursuant to thisAgreement, Employer shall compensate Executive as follows:

 

(a)                                  BaseCompensation - In consideration of the full and faithful performance byExecutive of his obligations hereunder during the Term and subject to the termsand conditions set forth herewith, Employer (or any subsidiary or affiliate ofEmployer for which Executive also provides services hereunder) shall pay toExecutive $205,000 per annum (such annual compensation as it may be increasedfrom time to time shall be referred to herein as the “Base Compensation”).  Executive’s Base Compensation will be paidin accordance with Employer’s customary payroll practices (but not lessfrequently than monthly) and will be prorated based upon the number of dayselapsed in any partial year.  BaseCompensation shall be reviewed annually and may be increased at the solediscretion of the Board.

 

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

 

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

 

(d)                                 Expenses- Executive shall be entitled to reimbursement for his ordinary and necessarybusiness expenses, incurred in the performance of his duties under thisAgreement if supported by reasonable documentation as required by Employer inaccordance with its usual practices.

 

(e)                                  CarAllowance - During the Term, Executive shall be entitled to a car allowanceof $700 per month.  Executive shall beresponsible for all costs associated with such car (other than fuel expensesreimbursable under Section 4(d) hereof).

 

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

 

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**5.****                                      Expiration/Terminationof Employment**

 

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

 

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

 

(c)                                  Effectof Expiration or Termination For Cause or Without Good Reason - Upon theexpiration of this Agreement pursuant to subsection 5(a) hereof or upon atermination of this Agreement pursuant to subsection 5(b) hereof byEmployer with Cause or by Executive without Good Reason, Executive shall beentitled to payment of: (i) Base Compensation through the Termination Date;(ii) amounts accrued under benefit plans in which Executive is a participant asof the Termination Date.

 

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

 

(e)                                  EffectOf Termination Following a Change of Control  - Notwithstanding any other provision in this Agreement tothe contrary, following a Change in Control as defined in Section 6hereof, (a) if Executive chooses to terminate his employment without GoodReason pursuant to Section 5(b) hereof, such termination shall be treatedas termination under Section 5(c) hereof; (b) if Employer (or itssuccessor) terminates Executive’s employment without Cause pursuant toSection 5(b) hereof, such termination shall be treated as a terminationunder Section 5(d) hereof, except that Executive shall receive BaseCompensation and benefits for the “Payout Period” (as defined below).  For the purposes of this Agreement, “PayoutPeriod” 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 inSection 6 occurs within 6 months after Executive has been terminatedWithout Cause or For Good Reason, then termination shall be treated as atermination following a Change of Control, and Executive shall receive BaseCompensation, bonus and benefits as defined by the “Payout Period”.

 

(f)                                    Definitionsof “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 Executiveto perform the essential functions of his job, with or without a reasonableaccommodation) or the material breach of this Agreement by Executive ifEmployer gives notice of such cause and it remains uncured for ten (10) daysfollowing such notice; (2) any act by Executive of fraud or dishonesty withrespect to any aspect of Employer’s business; (3) drug or alcohol abuse orrelated behavior that impedes Executive’s job performance or brings Executiveor Employer into disrepute in the community; (4) misappropriation of funds orany corporate opportunity: (5) a conviction or affirmative finding by anappropriate administrative agency that Executive is guilty of a felony or crimeof moral turpitude (or a plea of nolo contendere thereto); (6) acts byExecutive attempting to secure or securing any personal profit not fullydisclosed to and approved by the Board in connection with any transactionentered into on behalf of Employer; or (7) gross, willful or wanton negligenceor misconduct by Executive.

 

(ii)                                  “GoodReason” shall mean (1) a material and adverse change in Executive’s status orposition as an officer of Employer or a material reduction in the duties andresponsibilities previously exercised by Executive, or any removal of Executivefrom or any failure to reappoint or reelect Executive to such position, exceptin connection with the termination of Executive’s service as an officer forCause, or as a result of Executive’s death or inability to perform theessential functions of his job, with or without a reasonable accommodation, or(2) a reduction (other than for Cause) by Employer in Executive’s BaseCompensation as of the date hereof, or (3) a relocation of Executive’s assignedplace of employment outside the Dallas/Fort Worth Standard MetropolitanStatistical Area without Executive’s consent, or (4) a Change of Control.

 

(f)                                    Uponthe termination of this Agreement by Employer with Cause or by Executivewithout Good Reason, Employer shall have the option, exercisable within ninety(90) days after the termination date, to purchase all stock of Employer thenowned by Executive at fair market value on the date of termination, which shallbe determined in good faith by the Board. In the event that Executive disagrees with the Board’s determination offair market value, it shall be determined by an independent certified publicaccountant selected by the Board. Payment for such stock shall, at Employer’s option, be in cash or bypromissory note in the amount of the fair market value, bearing interest at 10%annum, and payable in no more than three equal annual installments ofprincipal, together with accrued interest.

 

(g)                                 Uponthe termination of this Agreement by Employer without Cause or by Executivewith Good Reason, Executive shall have the option, exercisable within ninety(90) days after the termination date, to require Employer to purchase all stockof Employer then owned by Executive, the valuation and payment terms to bedetermined 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 inthe event of Executive’s

 

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

 

(h)                                 Notwithstandingany provision to the contrary in any of the Company’s stock option plans oragreements, in the event of Executive’s permanent disability or death, any andall stock options that have been granted to Executive by the Company shall beexercisable by Executive and/or his successor, assigns, administrators orexecutors during the ten years (plus any replacement options and or timeextensions to the existing options) that said stock option(s) are outstanding.

 

**6.****                                      Change inControl is defined as:**

 

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

 

(a)                                  atender offer (or series of related offers) shall be made and consummated forthe ownership of 50% or more of the outstanding voting securities of theEmployer;

 

(b)                                 theEmployer shall be merged or consolidated with another corporation and as aresult of such merger or consolidation less than 50% of the outstanding votingsecurities of the surviving or resulting corporation shall be owned in theaggregate by the former shareholders of the Company, any employee benefit planof the Company or its subsidiaries, and their affiliates;

 

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

 

(d)                                 aPerson (as defined below) shall acquire 50% or more of the outstanding votingsecurities of the Company (whether directly, indirectly, beneficially or ofrecord).

 

For purposes ofthis Section, ownership of voting securities shall take into account and shallinclude ownership as determined by applying the provisions of Rule13d-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 ExchangeAct, as modified and used in Sections 13(d) and 14(d) thereof; however, aPerson shall not include (1) the Employer or any of its subsidiaries; (2) atrustee or other fiduciary holding securities under an employee benefit plan ofthe Company or any of its subsidiaries; (3) an underwriter temporarily holdingsecurities pursuant to an offering of such securities; or (4) a corporationowned, directly or indirectly, by the shareholders of the Employer insubstantially the same proportion as their ownership of stock of the Company.

 

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

 

(a)                                  Pursuantto this Agreement, Executive has agreed to become Senior Vice President andChief Development Officer of Employer and to comply with a non-disclosureprovision

 

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in Section 8.Executive recognizes and acknowledges that he will be given access to certainof Employer’s Confidential Information (as hereafter defined inSection 9(a)), and have access to and authority to develop relationshipswith customers of Employer because of his position and status as an Employer’sSenior Vice President and Chief Development Officer, which he would nototherwise attain.  In consideration ofthe foregoing, Executive agrees to comply with the terms of thisSection 7.

 

(b)                                 Therestraints imposed by this Section 7 shall apply during any period thatExecutive continues to receive payment of Base Compensation hereunder, and fora period of one year thereafter (the “Restricted Period”). Notwithstanding anyother provision in this Agreement, if Employer terminates Executive’semployment under Section 5(e) following a Change in Control, theRestricted Period shall extend for a period ending one year after the PayoutPeriod.  In the event that any Courthaving jurisdiction should find that the Restricted Period is so long and/orthe scope (distance) (as set forth below) is so broad as to constitute an unduehardship on Executive, then, in such event only, the Restricted Period and arealimitations shall be valid for the maximum time and area for which they couldbe legally made and enforced.

 

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

 

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

 

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

 

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

 

**9.****                                      Nondisclosure**

 

(a)                                  Executivehereby acknowledges that in connection with his employment by Employer he willbe exposed to and may obtain certain information (including, withoutlimitation, procedures, memoranda, notes, records and customer and supplierlists whether such information has been or is made, developed or compiled byExecutive or otherwise has been or is made available to him) regarding thebusiness and operations of Employer and its subsidiaries or affiliates.  Executive further acknowledges that suchinformation and procedures are unique, valuable, considered trade secrets anddeemed proprietary by Employer. For purposes of this Agreement, such informationand procedures shall be referred to as “Confidential Information,” except thatthe following shall not be considered Confidential Information: (i) informationdisclosed on a non-confidential basis to third parties by Employer (but not byExecutive in violation of this Agreement), (ii) information released fromconfidential treatment by written consent of Employer, and (iii) informationlawfully available to the general public.

 

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

 

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

 

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

 

(d)                                 Regardlessof whether any of the Confidential Information or any of the items set forth inSection 8 and this Section 9 constitute a trade secret as defined byTexas common law, Executive expressly recognizes and agrees that therestrictions contained in Section 8 of this Agreement and this Section 9represent a reasonable and necessary protection of the legitimate interests ofEmployer, that his failure to observe and comply with his covenants andagreements in those Sections will cause irreparable harm to Employer, that itis and will continue to be difficult to ascertain the harm and damages toEmployer that such a failure by Executive could cause, and that a remedy at lawfor 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 anyother rights and remedies which Employer may have in the event of any breach ofsaid Sections, Employer shall be entitled, and hereby is expressly andirrevocably authorized by Executive, interalia, to demand andobtain specific performance, including without limitation temporary andpermanent injunctive relief, and all other appropriate equitable relief againstExecutive in order to enforce against Executive, or in order to prevent anybreach or any threatened breach by Executive of, the covenants and agreementscontained herein. In case of any breach of this Agreement, nothing hereincontained shall be construed to prevent Employer from seeking such other remedyin the courts as it may elect or invoke.

 

**11.****                               Delegationof Duties and Assignment of Rights**

 

(a)                                  Executivemay 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 writtenconsent shall be null and void with no force or effect.  Notwithstanding the foregoing, nothingherein shall prevent Executive from delegating ministerial tasks to assistantsof the type that are normally assigned by executives to assistants.

 

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

 

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

 

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

 

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

 

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

 

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

 

**16.****                               Effectiveness; EntireAgreement; Amendment** - This Agreement contains the entire understandingand agreement between the parties relating to the subject matter hereof and,upon the execution hereof, that certain Employment Offer Letter datedJanuary 13, 1999 between IESI Corporation and Executive is terminated andcancelled.  Neither this Agreement norany provision hereof may be waived, modified, amended, changed, discharged orterminated, except by an agreement in writing signed by the party against whomenforcement of any waiver, modification, change, amendment, discharge ortermination is sought.

 

**17.****                               Notices** - Anynotice required or permitted to be given under the provisions of this Agreementshall be in writing and shall be deemed to have been duly given on the date ofdelivery if delivered personally to the party to whom notice is to be given (orto the appropriate address below), or on the third day after mailing if mailedto 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 inwriting 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 itsaddress for purposes of this paragraph by giving the other parties writtennotice of the new address in the manner set forth above.

 

**18.****       Headings** - The section headingsherein are for convenience only and shall not be used in interpreting orconstruing this Agreement.

 

INWITNESS WHEREOF, the parties hereto have executed this Employment Agreement tobe 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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