**Exhibit 10.9**

 

**EMPLOYMENTAGREEMENT**

** **

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered intoeffective as of January 1, 2004 (the “Effective Date”), by and betweenIESI Corporation, a Delaware corporation (“IESI” or “Employer”), and Charles F.Flood (“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 President and Chief Executive Officerupon the terms and conditions and for the compensation herein provided.Executive hereby agrees to be so employed and to render the services specifiedherein for Employer and any subsidiaries or affiliates of Employer. In hiscapacity as its President and Chief Executive Officer of Employer, Executiveshall devote his full and undivided business time and attention to his dutiesand responsibilities.

 

**2.****                                      Termof Employment** - Subject to the provisions for termination as providedin 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, 2006.

 

**3.****                                      Dutiesand Powers** - During the Term, Executive agrees as follows: to devotehis full and exclusive business time and attention to the business of Employerand of any subsidiaries or affiliates of the Company including, but not limitedto, 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 President and Chief Executive Officer of Employer, subject to all lawfulpolicies and guidelines as may be established by the Board of Directors ofEmployer (the “Board”).  Executiveagrees not to engage in any other activity or own any interest that wouldconflict 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 engage in activities involvingcharitable, educational, religious and similar types of organizations, speaking

 

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engagements and similartype activities to the extent that such other activities do not detract fromthe performance by Executive of his 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 $350,000 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. Base Compensation shall be reviewed annually andmay 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, 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 four (4) 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, including country club dues not to exceed $2,500 annually,incurred in the performance of his duties under this Agreement if supported byreasonable documentation as required by Employer in accordance with its usualpractices.

 

(e)                                  CarAllowance - During the Term, Executive shall be entitled to a car allowanceof $1,000 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 36 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 otherprovision in this Agreement to the contrary, following a Change in Control asdefined in Section 6 hereof, (a) if Executive chooses to terminate hisemployment without Good Reason pursuant to Section 5(b) hereof, suchtermination shall be treated as termination under Section 5(c) hereof; (b)if Employer (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 receiveBase Compensation and benefits for the “Payout Period” (as defined below).  For the purposes of this Agreement, “PayoutPeriod” shall mean three (3) years and includes Base Compensation for eachyear, bonus (equal to 33 % of Base Compensation, times 3 years) andbenefits.  If a Change in Control asdefined in Section 6 occurs within 6 months after Executive has beenterminated Without Cause or For Good Reason, then termination shall be treatedas a termination following a Change of Control, and Executive shall receiveBase Compensation, 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 the essentialfunctions of his job, with or without a reasonable accommodation, or (2) areduction (other than for Cause) by Employer in Executive’s Base Compensationas of the date hereof, or (3) a relocation of Executive’s assigned place ofemployment outside the Dallas/Fort Worth Standard Metropolitan Statistical Areawithout 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 thesame option to require Employer to purchase Executive’s stock in the event ofExecutive’s death or permanent disability. Such option must be exercised by notice to Employer within ninety (90)days after Executive’s death or permanent disability.

 

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(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.****                                      Changein Control 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 corporation owned,directly or indirectly, by the shareholders of the Employer in substantiallythe 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 President and Chief ExecutiveOfficer of Employer and to comply with a non-disclosure provision inSection 8. Executive recognizes and acknowledges that he will be givenaccess to certain of Employer’s Confidential Information (as hereafter definedin Section 9(a)), and have access

 

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to and authority todevelop relationships with customers of Employer because of his position andstatus as an Employer’s President and Chief Executive Officer, which he wouldnot otherwise attain.  In considerationof the 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 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) orin 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 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,

 

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and that Executive has acquired knowledge and skillsin his field 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 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 those documents.Executive shall never at any time have or claim any right, title or interest inany material or matter of any sort prepared for or used in connection with thebusiness or promotion of Employer.

 

**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, 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)                                 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 Executive in the case of any actual or threatenedmisappropriation of any such trade secret by Executive.

 

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(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 thisSection 9 represent a reasonable and necessary protection of thelegitimate interests of Employer, that his failure to observe and comply withhis covenants and agreements in those Sections will cause irreparable harm toEmployer, that it is and will continue to be difficult to ascertain the harm anddamages to Employer that such a failure by Executive could cause, and that aremedy at law for such failure by Executive will be inadequate.

 

**10.****                               Enforcement**- The parties hereto recognize that the covenants of Executive hereunder arespecial, unique and of extraordinary character.  Accordingly, it is the intention of the parties that, in additionto any other rights and remedies which Employer may have in the event of anybreach of said Sections, Employer shall be entitled, and hereby is expresslyand irrevocably authorized by Executive, interalia, to demandand obtain 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.

 

**12.****                               Survivalof Covenants** - Notwithstanding anything contained in this Agreement,upon the expiration of the Term or the Restricted Period, as applicable, or inthe event Executive’s employment is terminated for any reason whatsoever, thecovenants and agreements of

 

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Executive contained inSections 7 (to the extent set forth therein), 8, 9, 10 and 12 and the covenantsof Employer contained in Section 5 hereof shall survive any suchexpiration or termination and shall 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.****                               GoverningLaw** - This agreement is entered into in Texas, and the construction,validity and interpretation of this agreement shall be governed by the laws ofthe State of Texas without regard to the laws of conflicts 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 Employment Agreement datedDecember 1, 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 of thisAgreement shall be in writing and shall be deemed to have been duly given onthe date of delivery if delivered personally to the party to whom notice is tobe 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, addressedas follows, or to such other person at such other address as any party mayrequest in writing to the other party to this Agreement:

 
|   | To Executive: |   | Charles F. Flood               |
|--------|---------------|--------|--------------------------------|
|   |          |   | 6325  Mesa Ridge               |
|   |          |   | Fort  Worth, Texas 76180       |
|   |          |   |                           |
|   | To IESI:      |   | IESI Corporation               |
|   |          |   | 2301 Eagle Parkway,  Suite 200 |
|   |          |   | Ft. Worth, Texas 76177         |

 

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Any party maychange its address for purposes of this paragraph by giving the other partieswritten notice of the new address in the manner set forth above.

 

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

 

INWITNESS WHEREOF, the parties hereto have executed this Employment Agreement tobe effective as of the Effective Date.

 
|   | **EXECUTIVE:**        |
|--------|-----------------------|
|   |                  |   |
|   |                  |   |
|   | /s/ Charles F. Flood  |
|   | **CHARLES  F. FLOOD** |
|   |                  |   |
|   |                  |   |
|   | **EMPLOYER:**         |
|   |                  |   |
|   | **IESI CORPORATION**  |
|   |                  |   |
|   |                  |   |
|   | BY:                   | /s/ Jeffrey J. Keenan |
|   |                  | **JEFFREY J. KEENAN  CHAIRMAN** |
|        |                       |  |  |

 

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