**Exhibit10.11**

 

**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 Thomas L Brown (“Executive”).

 

**WITNESSETH**

 

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

 

NOW, THEREFORE, in considerationof the mutual promises and covenants herein set forth and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, Employer and Executive, intending to be legally bound, agree asfollows:

 

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

 

**2.****                                      Term of Employment** - Subject to the provisions for termination asprovided in Section 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 and Powers** - During the Term, Executive agrees as follows:to devote his full and exclusive business time and attention to the business ofEmployer and of any subsidiaries or affiliates of the Company including, butnot limited to, IESI Corporation (excluding reasonable vacations and sick leavein accordance with Employer’s policies consistent with his position); toperform all duties in a professional and prudent manner, to devote the best ofhis skill, energy, experience and judgment to such duties; and to communicateto Employer suggestions, ideas or information that may be helpful to Employerin its businesses.  Executive shall haveall the powers and agrees to perform all of the duties associated with hisposition as Senior Vice President and Chief Operating Officer of Employer, subjectto all 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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engagein activities involving 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.****                                      Compensation and Benefits** - For all services rendered by Executivepursuant to this Agreement, Employer shall compensate Executive as follows:

 

(a)                                  Base Compensation - In consideration of the full and faithfulperformance by Executive of his obligations hereunder during the Term andsubject to the terms and conditions set forth herewith, Employer (or anysubsidiary or affiliate of Employer for which Executive also provides serviceshereunder) shall pay to Executive $225,000 per annum (such annual compensationas it may be increased from time to time shall be referred to herein as the“Base Compensation”).  Executive’s BaseCompensation will be paid in accordance with Employer’s customary payrollpractices (but not less frequently than monthly) and will be prorated basedupon the number of days elapsed in any partial year. Base Compensation shall bereviewed 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 beawarded performance bonuses from time to time, in the sole discretion of theBoard.

 

(c)                                  Benefits - Vacation.  During the Term,Executive shall be entitled to such benefits (including health, dental anddisability coverage, life insurance, 401K, holiday and sick days) as Employermay, from time to time, make available to its executive employees. Executiveshall be entitled 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 takemore than two weeks of vacation leave at any one time. Unused vacation shallnot be carried forward.

 

(d)                                 Expenses – Executive shall be entitled to reimbursement for his ordinary andnecessary business expenses, incurred in the performance of his duties underthis Agreement if supported by reasonable documentation as required by Employerin 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 beresponsible for all costs associated with such car (other than fuel expensesreimbursable under Section 4(d) hereof).

 

(f)                                    Liability for Taxes - Employer shall have no liability for any taxobligation of Executive attributable to any payment made under this Agreementexcept for customary federal and state withholding taxes (e.g., socialsecurity, Medicare, etc.).  Employer maywithhold from any such payment such amounts as may be required by applicableprovisions of the Internal Revenue Code, other tax laws, and the rules andregulations of the Internal Revenue Service and other tax agencies, as ineffect 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 withthe terms of this Agreement, Executive’s employment shall expire at the end ofthe Term.

 

(b)                                 Termination at Will - The parties acknowledge and agree thatExecutive’s employment hereunder is an employment at will.  Notwithstanding any other provisioncontained in this Agreement, either Executive or Employer may terminateExecutive’s employment hereunder at any time with or without Cause (as definedin 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 theother.  A Termination Notice shall beeffective upon delivery to the other party and the termination shall beeffective as of the date set forth in such Termination Notice (hereinafter, the“Termination Date”).

 

(c)                                  Effect of Expiration or Termination For Cause orWithout 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 by Employerwith Cause or by Executive without Good Reason, Executive shall be entitled topayment of: (i) Base Compensation through the Termination Date; (ii) amountsaccrued under benefit plans in which Executive is a participant as of the TerminationDate.

 

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

 

(e)                                  Effect Of Termination Following a Change ofControl - Notwithstanding anyother provision in this Agreement to the contrary, following a Change inControl as defined in Section 6 hereof, (a) if Executive chooses to terminatehis employment without Good Reason pursuant to Section 5(b) hereof, suchtermination shall be treated as termination under Section 5(c) hereof; (b) ifEmployer (or its successor) terminates Executive’s employment without Causepursuant to Section 5(b) hereof, such termination shall be treated as atermination under 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 in Section6 occurs within 6 months after Executive has been terminated Without Cause orFor Good Reason, then termination shall be treated as a termination following aChange of Control, and Executive shall receive Base Compensation, bonus andbenefits 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 Executiveto perform his duties with Employer (other than any such failure resulting fromdeath or the inability of Executive to perform the essential functions of hisjob, with or without a reasonable accommodation) or the material breach of thisAgreement by Executive if Employer gives notice of such cause and it remainsuncured for ten (10) days following such notice; (2) any act by Executive offraud or dishonesty with respect to any aspect of Employer’s business; (3) drugor alcohol abuse or related behavior that impedes Executive’s job performanceor brings Executive or Employer into disrepute in the community; (4)misappropriation of funds or any corporate opportunity: (5) a conviction oraffirmative finding by an appropriate administrative agency that Executive isguilty of a felony or crime of moral turpitude (or a plea of nolo contenderethereto); (6) acts by Executive attempting to secure or securing any personalprofit not fully disclosed to and approved by the Board in connection with anytransaction entered into on behalf of Employer; or (7) gross, willful or wantonnegligence or misconduct by Executive.

 

(ii)                                  “Good Reason” shall mean (1) a material andadverse change in Executive’s status or position as an officer of Employer or amaterial reduction in the duties and responsibilities previously exercised byExecutive, or any removal of Executive from or any failure to reappoint orreelect Executive to such position, except in connection with the terminationof Executive’s service as an officer for Cause, or as a result of Executive’sdeath or inability to perform the essential functions of his job, with orwithout 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) arelocation of Executive’s assigned place of employment outside the Dallas/FortWorth Standard Metropolitan Statistical Area without Executive’s consent, or(4) a Change of Control.

 

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

 

(g)                                 Upon the termination of this Agreement byEmployer without Cause or by Executive with Good Reason, Executive shall have theoption, exercisable within ninety (90) days after the termination date, torequire Employer to purchase all stock of Employer then owned by Executive, thevaluation and payment terms to be determined as set out in (f) above.  Executive (or his duly designated personalrepresentative or executor) shall have the same option to require Employer topurchase 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 inany of the Company’s stock option plans or agreements, in the event ofExecutive’s permanent disability or death, any and all stock options that havebeen granted to Executive by the Company shall be exercisable by Executiveand/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 bedeemed 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 theoutstanding voting securities of the Employer;

 

(b)                                 the Employer shall be merged or consolidated withanother corporation and as a result of such merger or consolidation less than50% of the outstanding voting securities of the surviving or resultingcorporation shall be owned in the aggregate by the former shareholders of theCompany, any employee benefit plan of the Company or its subsidiaries, andtheir affiliates;

 

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

 

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

 

For purposes of this Section, ownership of votingsecurities shall take into account and shall include ownership as determined byapplying the provisions of Rule 13d-3(d)I)(i) (as in effect on the date hereof)under the Exchange Act.  Also for purposesof this Section 6(b), Person shall have the meaning given in Section 3(a)(9) ofthe 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 itssubsidiaries; (2) a trustee or other fiduciary holding securities under anemployee benefit plan of the Company or any of its subsidiaries; (3) anunderwriter temporarily holding securities pursuant to an offering of suchsecurities; or (4) a corporation owned, directly or indirectly, by theshareholders of the Employer in substantially the same proportion as theirownership of stock of the Company.

 

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

 

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

 

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Section8. Executive recognizes and acknowledges that he will be given access tocertain of Employer’s Confidential Information (as hereafter defined in Section9(a)), and have access to and authority to develop relationships with customersof Employer because of his position and status as an Employer’s Senior VicePresident and Chief Operating Officer, which he would not otherwiseattain.  In consideration of theforegoing, Executive agrees to comply with the terms of this Section 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 any other provision in thisAgreement, if Employer terminates Executive’s employment under Section 5(e)following a Change in Control, the Restricted Period shall extend for a periodending one year after the Payout Period. In the event that any Court having jurisdiction should find that theRestricted 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 suchevent only, the Restricted Period and area limitations shall be valid for themaximum time and area for which they could be 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 management capacity,directly or indirectly, (i) solicit or hire any employee of Employer orotherwise 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 this Section 7are (i) reasonable as to time, geographic limitation and scope of activity tobe restrained; (ii) reasonably necessary to the enjoyment by Employer of thevalue of its assets and to protect its legitimate interests; and (iii) notoppressive.  Executive further expresslyrecognizes and agrees that the restraints imposed by this Section 7 represent areasonable and necessary restriction for the protection of the legitimateinterests of Employer, that the failure by the Executive to observe and complywith the covenants and agreements in this Section 7 will cause irreparable harmto Employer, that it is and will continue to be difficult to ascertain the harmand damages to Employer that such a failure by the Executive would cause, thatthe consideration received by the Executive for entering into these covenantsand

 

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agreements isfair, that the covenants and agreements and their enforcement will not depriveExecutive of his ability to earn a reasonable living in the waste disposalfield or otherwise, and that Executive has acquired knowledge and skills in hisfield that will allow him to obtain employment without violating thesecovenants and agreements. Executive further expressly acknowledges that he hasbeen encouraged to and has consulted independent counsel, and has reviewed andconsidered this Agreement with that counsel before executing this Agreement.

 

**8.****                                      Memoranda, Notes, Records, Etc.** - All memoranda, notes, records, customer listsor other 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)                                  Executive hereby acknowledges that in connectionwith his employment by Employer he will be exposed to and may obtain certaininformation (including, without limitation, procedures, memoranda, notes,records and customer and supplier lists whether such information has been or ismade, developed or compiled by Executive or otherwise has been or is madeavailable to him) regarding the business and operations of Employer and itssubsidiaries or affiliates.  Executivefurther acknowledges that such information and procedures are unique, valuable,considered trade secrets and deemed proprietary by Employer.  For purposes of this Agreement, suchinformation 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 releasedfrom confidential treatment by written consent of Employer, and (iii)information lawfully available to the general public.

 

(b)                                 Executive agrees that all ConfidentialInformation is and will remain the property of Employer.  Executive further agrees, for the durationof the Term and thereafter, to hold in the strictest confidence allConfidential 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)                                  It is the intention of the parties that to theextent any Confidential Information may constitute a “trade secret” as definedby Texas common law, then, in addition to the remedies set forth in thisAgreement, Employer may elect to bring an action against

 

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

 

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

 

**10.****                               Enforcement** - The parties hereto recognize that the covenants of Executivehereunder are special, unique and of extraordinary character.  Accordingly, it is the intention of theparties that, in addition to any other rights and remedies which Employer mayhave in the event of any breach of said Sections, Employer shall be entitled,and hereby is expressly and irrevocably authorized by Executive, interalia,to demand and obtain specific performance, including without limitationtemporary and permanent injunctive relief, and all other appropriate equitablerelief against Executive in order to enforce against Executive, or in order toprevent any breach or any threatened breach by Executive of, the covenants andagreements contained herein. In case of any breach of this Agreement, nothingherein contained shall be construed to prevent Employer from seeking such otherremedy 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 anyof his obligations or duties hereunder, or assign any rights hereunder, withoutthe prior written consent of Employer. Any such purported delegation orassignment in the absence of such written consent shall be null and void withno force or effect.  Notwithstanding theforegoing, nothing herein shall prevent Executive from delegating ministerial tasksto assistants of the type that are normally assigned by executives toassistants.

 

(b)                                 Employer may not assign this Agreement exceptwith the prior written consent of Executive, except that Employer may withoutExecutive’s consent assign all of its rights and obligations under thisAgreement to the person or entity acquiring a majority of the assets oroutstanding stock of IESI or pursuant to a merger or consolidation ofIESI.  In the event of such anassignment by Employer, each reference in this Agreement to Employer shall****include****theassignee from and after the date of such assignment.

 

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

 

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**12.****                               Survival of Covenants** - Notwithstanding anything contained in thisAgreement, upon the expiration of the Term or the Restricted Period, asapplicable, or in the event Executive’s employment is terminated for any reasonwhatsoever, the covenants and agreements of Executive contained in Sections 7 (tothe extent set forth therein), 8, 9, 10 and 12 and the covenants of Employercontained in Section 5 hereof shall survive any such expiration or terminationand shall not lapse except as provided herein.

 

**13.****                               Warranty** - Executive does hereby warrant that he has not taken any action, andcovenants that 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 isheld or deemed to be invalid or unenforceable in whole or in part, by a courtof competent 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, andthe construction, validity and interpretation of this agreement shall begoverned by the laws of the State of Texas without regard to the laws ofconflicts of laws.

 

**16.****                               Effectiveness; Entire Agreement; Amendment** - This Agreement contains the entireunderstanding and agreement between the parties relating to the subject matterhereof and, upon the execution hereof, that certain Change of Control Agreementdated March 7, 2001 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** - Any notice required or permitted to be given under the provisions ofthis Agreement shall be in writing and shall be deemed to have been duly givenon the date of delivery if delivered personally to the party to whom notice isto be given (or to the appropriate address below), or on the third day aftermailing if mailed to the party to whom notice is to be given by certified orregistered mail, return receipt requested, postage prepaid, or by courier,addressed as follows, or to such other person at such other address as anyparty 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 bygiving the other parties written notice of the new address in the manner setforth above.

 

**18.****       Headings** - The section headings herein are for convenience only and shall notbe used in interpreting or construing this Agreement. 

 

IN WITNESS WHEREOF, the partieshereto have executed this Employment Agreement to be effective as of theEffective 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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