Exhibit 10.1


 


IESI CORPORATION


 


1999 Stock Option Plan


As amended


 


1.             Purpose.                The
purpose of the IESI Corporation 1999 Stock Option Plan (the “Plan”) is to
provide (i) key employees of IESI Corporation (the “Company”) and its
subsidiaries, (ii) certain consultants and advisors who perform services for
the Company or its subsidiaries, and (iii) members of the Board of Directors of
the Company (the “Board”), with the opportunity to acquire shares of the Class
A Voting Common Stock of the Company (“Common Stock”).  The Company believes that the Plan will
enhance the incentive for participants to contribute to the growth of the
Company, thereby benefiting the Company and the Company’s shareholders, and
will align the economic interests of the participants with those of the
shareholders.


2.             Administration.


2.1           Committee.  The Plan shall be administered and
interpreted by the Compensation Committee (the “Committee”).  The Committee may consist of two or more
members of the Board who are “outside directors” as defined under Section
162(m) of the Internal Revenue Code of 1986, as amended (the “Code”) and
“non-employee directors” as defined under Rule 16b-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).


2.2           Authority of Committee.  The Committee has the sole authority,
subject to the provisions of the Plan, to (i) select the employees and other
individuals to be granted options under the Plan (“Options”), (ii) determine
the type, size and terms of the grant of Options to be made to each individual
selected, (iii) determine the time when Options will be granted and the
duration of any applicable exercise period, including the criteria for
exercisability and the acceleration of exercisability and (iv) deal with any
other matter arising under the Plan. 
The Committee is authorized to interpret the Plan and the Options
granted under the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, and to make any other determination that it
deems necessary or desirable for the administration of the Plan.  The Committee may correct any defect or
supply any omission or reconcile any inconsistency in the Plan or in any Option
in the manner and to the extent the Committee deems necessary or
desirable.  Any decision of the Committee
in the interpretation and administration of the Plan shall lie within its sole
and absolute discretion and shall be final, conclusive and binding on all
parties concerned.  All powers of the
Committee shall be executed in its sole discretion and need not be uniform as
to similarly situated individuals. Any act of the Committee with respect to the
Plan may only be undertaken and executed with the affirmative consent of at
least two-thirds of the members of the Committee.


2.3           Responsibility of Committee.  No member of the Board, no member of the
Committee and no employee of the Company shall be liable for any act or failure
to act hereunder, except in circumstances involving his or her bad faith, gross
negligence or 


 

















 


willful misconduct, or
for any act or failure to act hereunder by any other member of the Committee or
employee of the Company.  The Company
shall indemnify members of the Committee and any employee of the Company
against any and all liabilities or expenses to which they may be subjected by
reason of any act or failure to act with respect to their duties under the
Plan, except in circumstances involving his or her bad faith, gross negligence
or willful misconduct.


2.4           Delegation of Authority.  The Committee may delegate to an officer of
the Company the authority to (i) make grants under the Plan to employees of the
Company and its subsidiaries who are not subject to the restrictions of Section
16(b) of the Exchange Act and who are not expected to be subject to the
limitations of Section 162(m) of the Code, and (ii) execute and deliver
documents or take any other ministerial actions on behalf of the Committee with
respect to Options.  The grant of
authority under this Subsection 2.4 shall be subject to such conditions and
limitations as may be determined by the Committee.  If the Chairman makes grants pursuant to the delegated authority
under this Subsection 2.4, references in the Plan to the “Committee” as they
relate to making such grants shall be deemed to refer to the Chairman.


3.             Participants.         All employees, officers and directors of the Company
and its subsidiaries (including members of the Board who are not employees), as
well as consultants and advisors to the Company or its subsidiaries, are
eligible to participate in the Plan. 
Consistent with the purposes of the Plan, the Committee shall have
exclusive power to select the employees, officers, directors and consultants
and advisors who may be granted Options under the Plan (“Optionees”).  Eligible individuals may be selected
individually or by groups or categories, as determined by the Committee in its
discretion, and designation as a person to receive Options in any year shall
not require the Committee to designate such a person as eligible to receive
Options in any other year.


4.              Options under the Plan.


4.1           Common Stock Available for Options.  The aggregate number of shares of Common
Stock that may be subject to Options shall be 400,000 shares of Common Stock,
which may be authorized and unissued or treasury shares, subject to any adjustments
made in accordance with Section 5 hereof. 
The maximum number of shares of Common Stock with respect to which
Options may be granted to any individual Optionee shall be 100,000 shares.  Any share of Common Stock subject to an
Option that for any reason is cancelled or terminated without having been
exercised shall again be available for Options under the Plan; provided,
however, that any such availability shall apply only for purposes of
determining the aggregate number of shares of Common Stock subject to Options
and shall not apply for purposes of determining the maximum number of shares
subject to Options that any individual Optionee may receive.


4.2           Options.  Options are awards from the Company that
will enable an Optionee to purchase shares of Common Stock, and they are not to
be treated as “incentive stock options” within the meaning of Section 422(b) of
the Code.  Each Option shall be
evidenced by an option agreement (“Option Agreement”) and shall be subject to
the 


 


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terms, conditions and
restrictions consistent with the Plan as the Committee may impose from time to
time, subject to the following limitations:


4.2.1        Exercise Price.  The price per share (the “Exercise Price”)
of Common Stock subject to an Option shall be determined by the Committee and
may be equal to or greater than the Fair Market Value (as defined below) of a
share of Common Stock on the date the Option is granted.


If Common Stock is
publicly traded, then the “Fair Market Value” per share shall be determined as
follows: (x) if the principal trading market for the Common Stock is a national
securities exchange or the Nasdaq National Market, the last reported sale price
thereof on the relevant date or (if there were no trades on that date) the
latest preceding date upon which a sale was reported, or (y) if the Common
Stock is not principally traded on such exchange or market, the mean between
the last reported “bid” and “asked” prices of Common Stock on the relevant
date, as reported on Nasdaq or, if not so reported, as reported by the National
Daily Quotation Bureau, Inc. or as reported in a customary financial reporting
service, as applicable and as the Committee determines.  If the Company Stock is not publicly traded
or, if publicly traded, is not subject to reported transactions or “bid” or
“asked” quotations as set forth above, the Fair Market Value per share shall be
as determined by the Committee.


4.2.2        Payment of Exercise Price.  The Exercise Price may be paid in cash or,
in the discretion of the Committee, by the delivery of shares of Common Stock
that have been owned by the Optionee for at least six months, or by a
combination of these methods.  In the
discretion of the Committee, payment may also be made by delivering a properly
executed exercise notice to the Company together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds to pay the Exercise Price. 
To facilitate the foregoing, the Company may enter into agreements for
coordinated procedures with one or more brokerage firms.  The Committee may prescribe any other method
of paying the Exercise Price that it determines to be consistent with
applicable law and the purpose of the Plan, including, without limitation, in
lieu of the exercise of an Option by delivery of shares of Common Stock of the
Company then owned by Optionee, providing the Company with a notarized
statement attesting to the number of shares owned for at least six months,
where upon verification by the Company, the Company would issue to the Optionee
only the number of incremental shares to which the Optionee is entitled upon
exercise of the Option.


4.2.3        Exercise Period.  Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee; provided, however, that no Option shall be exercisable later than
ten years after the date it is granted. 
All Options shall terminate at such earlier times and upon such
conditions or circumstances as the Committee shall in its discretion set forth
in the Option Agreement at the date of grant.


 


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4.3           Termination of Employment,
Disability or Death.


4.3.1        Except as provided below (or in an
Option Agreement), an Option may only be exercised while the Optionee is
employed by, or providing service to, the Company as an employee, member of the
Board or advisor or consultant.  In the
event that an Optionee ceases to be employed by, or provide service to, the
Company for any reason other than Disability (as defined in Paragraph (4.3.5)
below), death or a termination for Cause (as defined in Paragraph (4.3.5)
below), any Option which is otherwise exercisable by the Optionee shall
terminate unless exercised within 90 days after the date on which the Optionee
ceases to be employed by, or provide service to, the Company, but in any event
no later than the date of expiration of the Option.  Except as otherwise provided by the Committee, any Optionee’s
Options which are not otherwise exercisable as of the date on which the
Optionee ceases to be employed by, or provide service to, the Company shall
terminate as of such date.


4.3.2        In the event the Optionee ceases to be
employed by, or provide service to, the Company on account of a termination for
Cause by the Company or a termination by the Optionee, any Option held by the
Optionee shall terminate as of the date the Optionee ceases to be employed by,
or provide service to, the Company.  In
addition, notwithstanding any other provisions of this Section 4, if the
Committee determines that the Optionee has engaged in conduct that constitutes
Cause at any time while the Optionee is employed by, or providing service to,
the Company, or after the Optionee’s termination of employment or service, any
Option held by the Optionee shall immediately terminate.  In the event the Committee determines that
the Optionee has engaged in conduct that constitutes Cause, in addition to the
immediate termination of all Options, the Optionee shall automatically forfeit
all shares underlying any exercised portion of an Option for which the Company
has not yet delivered the share certificates, upon refund by the Company of the
Exercise Price paid by the Optionee for such shares (subject to any right of
setoff by the Company).


4.3.3        In the event the Optionee ceases to be
employed by, or provide service to, the Company because the Optionee is
Disabled, any Option which is otherwise exercisable by the Optionee shall
terminate unless exercised within one year after the date on which the Optionee
ceases to be employed by, or provide service to, the Company, but in any event
no later than the date of expiration of the Option.


4.3.4        If the Optionee dies while employed by,
or providing service to, the Company, any Option which is otherwise exercisable
by the Optionee shall terminate unless exercised within one year after the date
on which the Optionee ceases to be employed by, or provide service to, the
Company, but in any event no later than the date of expiration of the Option.


4.3.5                        For purposes of this Section 4.3:


 


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4.3.5.1                     The term “Company” shall
mean the Company and its subsidiary corporations.


4.3.5.2                     “Disability” or “Disabled”
shall mean an Optionee’s becoming disabled within the meaning of Section
22(e)(3) of the Code.


4.3.5.3                     “Cause” shall mean, except
to the extent specified otherwise by the Committee, a finding by the Committee
that the Optionee (i) has breached any provision of his or her employment or
service contract with the Company, including without limitation covenants
against competition, (ii) has engaged in any type of malfeasance or willful
misconduct, including, without limitation, fraud, embezzlement, theft, commission
of a felony or proven dishonesty in the course of his or her employment or
service, (iii) has engaged in the illegal use of drugs or the excessive and
recurring use of alcohol, (iv) has engaged in the willful violation of Company
policy or a willful, material violation of applicable law, or (v) has disclosed
trade secrets or confidential information of the Company to persons not
entitled to receive such information.


4.4           Interpretation of Options.  In the event of any conflict between the
provisions of the Plan and the provisions of any Option Agreement, the
provisions of the Plan shall be controlling.


 


5.             Adjustments to the Options. 
In the event of any change in the outstanding Common Stock of the
Company by reason of any stock split, stock dividend, split-up, split-off,
spin-off, recapitalization, merger, consolidation, reorganization, combination
or exchange of shares, a sale by the Company of all or part of its assets, or
in the event of any distribution to stockholders other than a normal cash dividend,
or other extraordinary or unusual event, if the Committee shall determine, in
its discretion, that such change equitably requires an adjustment in the terms
of any Option or the number of shares of Common Stock available for Options,
such adjustment may be made by the Committee and shall be final, conclusive and
binding for all purposes of the Plan.


6.             Change in
Control.


6.1           Effect.  Upon the occurrence of a Change in Control
(as defined below), each outstanding Option on the date of such Change in Control
shall become exercisable in full (whether or not then exercisable).  In its sole discretion, the Committee may
determine that, upon the occurrence of a Change in Control, each outstanding
Option shall terminate within a specified number of days after notice to the
Optionee thereunder, and each such Optionee shall receive, with respect to each
share of Common Stock subject to such Option, an amount equal to the excess of
the Fair Market Value of such shares immediately prior to such Change in
Control over the exercise price per share of such Option; such amount shall be
payable in cash, in one or more kinds of property (including the property, if
any, payable in the transaction) or a combination thereof, as the Committee
shall determine in its sole discretion.


 


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


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


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


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


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


For purposes of this Section 6.2, ownership of voting
securities shall take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(I)(i) (as in effect on the date
hereof) under the Exchange Act.  Also
for purposes of this Subsection 6.2, Person shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof; however, a Person shall not include (1) the Company or any of
its subsidiaries; (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries; (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities; or (4) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportion as their
ownership of stock of the Company.


 


7.             Transferability of Options. 
Except as provided below, an Optionee’s rights under an Option may not
be transferred or encumbered, except by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order (as defined
under Section 414(p) the Code).


8.             Withholding. 
All distributions made with respect to an Option shall be net of any
amounts required to be withheld pursuant to applicable federal, state and local
tax withholding requirements.  The
Company may require an Optionee to remit to it or to the corporation that
employs an Optionee an amount sufficient to satisfy such tax withholding requirements
prior to the delivery of any certificates for Common Stock.  In lieu thereof, the Company or the
employing corporation shall have the right to withhold the amount of such taxes
from any other sums due or to become due to the Optionee as the Company shall
prescribe.  The Committee may, in its
discretion and subject to such rules as it may adopt, permit an Optionee to pay
all or a portion of the federal, state and local withholding taxes arising in
connection with any Option exercise by electing to have the Company withhold
shares of Common Stock having a Fair Market Value equal to the amount of tax to
be withheld.


 


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9.             Shareholder Rights. 
An Optionee shall not have any of the rights or privileges of a holder
of Common Stock for any Common Stock that is subject to an Option, including
any rights regarding voting or the payment of dividends, unless and until a
certificate representing such Common Stock has been delivered to the Optionee.


10.          Tenure.  An Optionee’s
right, if any, to continue to serve the Company or its subsidiaries as a
director, officer, employee, consultant or advisor shall not be expanded or
otherwise affected by his or her designation as an Optionee.


11.          No Fractional Shares. 
No fractional shares of Common Stock shall be issued or delivered
pursuant to the Plan or any Option.  The
Committee shall determine whether cash shall be paid in lieu of fractional
shares or whether such fractional shares or any rights thereto shall be forfeited
or otherwise eliminated.


12.          Duration, Amendment and Termination. 
No Option may be granted more than ten years after the Effective Date
(as described in Section 14 below).  The
Plan may be amended or suspended in whole or in part at any time and from time
to time by the Board, but no amendment shall be effective unless and until the
same is approved by shareholders of the Company where the Amendment would (i)
increase the total number of shares which may be issued under the Plan or (ii)
increase the maximum number of shares of Common Stock with respect to Options
that may be granted to any individual Optionee.  No amendment or suspension of the Plan shall adversely affect in
a material manner any right of any Optionee with respect to any Option theretofore
granted without such Optionee’s written consent.


13.          Governing Law. 
This Plan, Options granted hereunder and actions taken in connection
with the Plan shall be governed by the laws of the State of Delaware regardless
of the law that might otherwise apply under applicable principles of conflicts
of laws.


14.          Effective Date. 
This Plan shall be effective as of January 1, 1999, which is date as of
which the Plan was adopted by the Board.


 


APPROVED, as of January 1, 1999


ADJUSTED BY THE COMMITTEE, as of September 10, 2001


AMENDED, as of January 29, 2004


 


IESI CORPORATION


 


 


 


	
  By:

  	
  /s/ Thomas J. Cowee

  
	
   

  	
  Thomas J. Cowee

  
	
   

  	
  Senior Vice President
  &

  
	
   

  	
  Chief Financial Officer

  



 


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