-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DYS6fI0cLXTRhYa7fVOxfDqq09uZYcV4Ae2UZiV2JalQIZI0DF0VPRmJJbCFrbQf s6BCjh2cA2WMrRPBQTMJCA== 0000914760-04-000216.txt : 20041021 0000914760-04-000216.hdr.sgml : 20041021 20041021172056 ACCESSION NUMBER: 0000914760-04-000216 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20040930 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041021 DATE AS OF CHANGE: 20041021 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IESI CORP CENTRAL INDEX KEY: 0001076103 STANDARD INDUSTRIAL CLASSIFICATION: REFUSE SYSTEMS [4953] IRS NUMBER: 752712191 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-98657 FILM NUMBER: 041090247 BUSINESS ADDRESS: STREET 1: 2301 EAGLE PARKWAY STREET 2: SUITE 200 CITY: FORT WORTH STATE: TX ZIP: 76177 BUSINESS PHONE: 817-632-4000 MAIL ADDRESS: STREET 1: 2301 EAGLE PARKWAY STREET 2: SUITE 200 CITY: FORT WORTH STATE: TX ZIP: 76177 8-K 1 i49644_8k93004.txt SEPTEMBER 30, 2004 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): September 30, 2004 IESI CORPORATION - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 333-98657 75-2712191 - -------------------------------------------------------------------------------- (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) 2301 EAGLE PARKWAY, SUITE 200, FORT WORTH, TX 76177 ----------------------------------------------- ------------ (Address of Principal Executive Offices) (Zip Code) (817) 632-4000 Registrant's Telephone Number, Including Area Code Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) SECTION 1 - REGISTRANT'S BUSINESS AND OPERATIONS ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. On September 30, 2004, the Registrant amended certain provisions of the employment agreements of Charles F. Flood, President and Chief Executive Officer of the Registrant, and Thomas J. Cowee, Chief Financial Officer, Senior Vice President, Treasurer and Assistant Secretary of the Registrant. The employment agreements were amended (the "Amendments") to provide for, among other things, the future grant to Messrs. Flood and Cowee of non-qualified stock options to purchase 35,000 shares and 19,500 shares, respectively, of the Registrant's Class A voting common stock subject to and effective upon the occurrence of an initial public offering of the Registrant's common stock that is completed prior to January 1, 2005 (the "IPO Options"). The IPO Options shall be exercisable over a four-year term as set forth in the Amendments at a price per share equal to the price at which shares of Registrant's common stock is offered to the public in an initial public offering. The Amendments further provide that, upon the occurrence of certain triggering events, such as the death or disability of the executives or termination of employment of the executives by the Registrant without "cause" or by the executives for "good reason," as such terms are defined in the respective employment agreements, all outstanding options owned by the executives shall immediately become exercisable in accordance with their respective terms and the IPO Options shall be deemed granted as of such triggering event. In addition, the Registrant granted options to Messrs. Flood and Cowee to purchase up to 14,670 shares and 8,836 shares, respectively, of the Registrant's Class A voting common stock (the "Option Agreements"). Such options shall be exercisable at a price per share equal to $100.00 and shall terminate automatically upon consummation of an initial public offering prior to January 1, 2005. All other terms of the Option Agreements are the same as the Registrant's form of employee option agreement. The foregoing descriptions of the Amendments and Option Agreements do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, copies of which are filed as exhibits hereto and are incorporated herein by reference. SECTION 9 - FINANCIAL STATEMENTS AND EXHIBITS ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (C) EXHIBITS. Exhibit No. Exhibit - ----------- ------- 10.1 Amendment to Employment Agreement, dated as of September 30, 2004, by and between the Registrant and Charles F. Flood. 10.2 Amendment to Employment Agreement, dated as of September 30, 2004, by and between the Registrant and Thomas J. Cowee. 10.3 Non-Qualified Stock Option Agreement by and between the Registrant and Charles F. Flood. 10.4 Non-Qualified Stock Option Agreement by and between the Registrant and Thomas J. Cowee. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. IESI CORPORATION By: /s/ Thomas J. Cowee Date October 21, 2004 ---------------------------- Name: Thomas J. Cowee Title: Senior Vice President, Chief Financial Officer, Treasurer and Assistant Secretary Exhibit Index Exhibit No. Exhibit - ----------- ------- 10.1 Amendment to Employment Agreement, dated as of September 30, 2004, by and between the Registrant and Charles F. Flood. 10.2 Amendment to Employment Agreement, dated as of September 30, 2004, by and between the Registrant and Thomas J. Cowee. 10.3 Non-Qualified Stock Option Agreement by and between the Registrant and Charles F. Flood. 10.4 Non-Qualified Stock Option Agreement by and between the Registrant and Thomas J. Cowee. EX-10.1 2 i49644_x101.txt AMENDMENT TO EMPLOYMENT AGREEMENT AMENDMENT OF EMPLOYMENT AGREEMENT THIS AMENDMENT (the "Amendment") is made and entered into as of September 30, 2004, by and between IESI Corporation, a Delaware corporation ("IESI" or the "Employer") and Charles F. Flood (the "Executive"). WITNESSETH WHEREAS, the Employer and the Executive have entered into an Employment Agreement dated as of January 1, 2004 (the "Employment Agreement"); and WHEREAS, the Employer and the Executive have agreed to amend the Employment Agreement upon the terms and conditions contained herein. NOW THEREFORE, in consideration of the promises and the mutual covenants herein contained, the parties hereto agree as follows: 1. Capitalized terms used but not defined herein shall have the meanings set forth in the Employment Agreement. 2. The following is hereby added to the Employment Agreement as Section 4(g): "(g) Non-Qualified Option Grant upon IPO ----------------------------------- (i) IESI shall grant to the Executive, as of the consummation of a firm commitment underwritten initial public offering (an "IPO") of IESI's Class A Voting Common Stock (the "Common Stock"), options to purchase an aggregate of 35,000 shares of Common Stock (such amount to be adjusted for any stock split, dividend or other recapitalization event immediately prior to an IPO) (hereinafter called the "IPO Options") if such IPO is consummated prior to January 1, 2005. The IPO Options shall be granted pursuant to, and be governed by, the terms and provisions of the IESI 1999 Stock Option Plan or any other option plan for executive officers of IESI (each as amended from time to time, the "Plan") and the Employer's standard Non-Qualified Stock Option Agreement (the "Option Agreement"), subject to the terms set forth herein. Each IPO Option shall have an exercise price equal to the price per share that the shares of IESI's Common Stock are offered to the public in the IPO. The IPO Options shall be fully vested and exercisable with respect to 25% of the shares underlying the IPO Options on each of January 1, 2005, 2006, 2007 and 2008, respectively. Notwithstanding any other provision of the Employment Agreement to the contrary, IESI's obligation to grant the IPO Options to the Executive shall terminate on the first to occur of the following: (A) the occurrence of a Change in Control, (B) the termination of the Executive's employment by either IESI for Cause or the Executive without Good Reason or (C) January 1, 2005 if no IPO has been consummated prior to such date. (ii) The Executive agrees that, upon an IPO and if requested by IESI and any underwriter engaged by IESI for a reasonable period of time specified by IESI or such underwriter following the effective date of the registration statement filed with respect to such IPO, the Executive will not, directly or indirectly, offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase, or otherwise dispose of any shares of IESI held by the Executive (except for any securities sold pursuant to such registration statement) or enter into any "Hedging Transaction" (as defined below) relating to any securities of IESI held by the Executive (including, without limitation, pursuant to Rule 144 under the Act or any successor or similar exemptive rule hereinafter in effect). Notwithstanding the foregoing, such period of time shall not exceed one hundred eighty (180) days. For purposes of this Section, "Hedging Transaction" means any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the IPO Options or the shares of IESI held by the Executive." 3. Section 5(h) of the Employment Agreement is hereby amended and restated in its entirety: "Notwithstanding any provision to the contrary in any of the Employer's stock option plans or agreements, in the event of Executive's death or permanent disability or upon termination of this Agreement by Employer without Cause or by Executive with Good Reason (each, a "Trigger Event"): (A) any and all stock options that have been granted to Executive by the Employer shall be exercisable pursuant to their terms by Executive and/or his successor, assigns, administrators or executors during the ten years (plus any replacement options or time extensions to the existing options) that such stock options are outstanding and (B) upon any Trigger Event occurring during the Term and prior to an IPO, the Employer shall grant to the Executive (or his successor, assigns, administrators or executors in the case of Executive's death) the IPO Options. The IPO Options shall be granted pursuant to, and be governed by, the terms and provisions of the Plan and the Option Agreement, subject to the terms set forth in Section 4(g) hereof. Notwithstanding any provision set forth in the Plan or the Option Agreement to the contrary, the IPO Option shall expire in its entirety on the tenth anniversary of the applicable event. " 4. The first phrase of Section 6 of the Employment Agreement shall be amended and restated as follows: "For purposes of this Agreement, Change of Control shall be deemed to have occurred if:" 5. The following language shall be added to the end of Section 6 of the Employment Agreement: "For purposes of this Agreement, a "Change of Control" shall not include an IPO of the Common Stock or any person or group which may be deemed to have acquired control immediately following such IPO." 6. Except as expressly provided herein, all other terms and conditions of the Employment Agreement shall remain in full force and effect. 7. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas (determined without regard to the conflict of law provisions thereof). 8. This Amendment may be executed by the parties hereto in counterparts, each of which shall be deemed an original, but both such counterparts shall together constitute one and the same document. IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the day and year first written above. EXECUTIVE: /s/ Charles F. Flood -------------------------------- CHARLES F. FLOOD EMPLOYER: IESI CORPORATION BY: /s/ Jeffrey J. Keenan ----------------------------- NAME: JEFFERY J. KEENAN TITLE: CHAIRMAN EX-10.2 3 i49644_x102.txt AMENDMENT TO EMPLOYMENT AGREEMENT AMENDMENT OF EMPLOYMENT AGREEMENT THIS AMENDMENT (the "Amendment") is made and entered into as of September 30, 2004, by and between IESI Corporation, a Delaware corporation ("IESI" or the "Employer") and Thomas J. Cowee (the "Executive"). WITNESSETH WHEREAS, the Employer and the Executive have entered into an Employment Agreement dated as of January 1, 2004 (the "Employment Agreement"); and WHEREAS, the Employer and the Executive have agreed to amend the Employment Agreement upon the terms and conditions contained herein. NOW THEREFORE, in consideration of the promises and the mutual covenants herein contained, the parties hereto agree as follows: 1. Capitalized terms used but not defined herein shall have the meanings set forth in the Employment Agreement. 2. The following is hereby added to the Employment Agreement as Section 4(g): "(g) Non-Qualified Option Grant upon IPO ----------------------------------- (i) IESI shall grant to the Executive, as of the consummation of a firm commitment underwritten initial public offering (an "IPO") of IESI's Class A Voting Common Stock (the "Common Stock"), options to purchase an aggregate of 19,500 shares of Common Stock (such amount to be adjusted for any stock split, dividend or other recapitalization event immediately prior to an IPO) (hereinafter called the "IPO Options") if such IPO is consummated prior to January 1, 2005. The IPO Options shall be granted pursuant to, and be governed by, the terms and provisions of the IESI 1999 Stock Option Plan or any other option plan for executive officers of IESI (each as amended from time to time, the "Plan") and the Employer's standard Non-Qualified Stock Option Agreement (the "Option Agreement"), subject to the terms set forth herein. Each IPO Option shall have an exercise price equal to the price per share that the shares of IESI's Common Stock are offered to the public in the IPO. The IPO Options shall be fully vested and exercisable with respect to 25% of the shares underlying the IPO Options on each of January 1, 2005, 2006, 2007 and 2008, respectively. Notwithstanding any other provision of the Employment Agreement to the contrary, IESI's obligation to grant the IPO Options to the Executive shall terminate on the first to occur of the following: (A) the occurrence of a Change in Control, (B) the termination of the Executive's employment by either IESI for Cause or the Executive without Good Reason or (C) January 1, 2005 if no IPO has been consummated prior to such date. (ii) The Executive agrees that, upon an IPO and if requested by IESI and any underwriter engaged by IESI for a reasonable period of time specified by IESI or such underwriter following the effective date of the registration statement filed with respect to such IPO, the Executive will not, directly or indirectly, offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase, or otherwise dispose of any shares of IESI held by the Executive (except for any securities sold pursuant to such registration statement) or enter into any "Hedging Transaction" (as defined below) relating to any securities of IESI held by the Executive (including, without limitation, pursuant to Rule 144 under the Act or any successor or similar exemptive rule hereinafter in effect). Notwithstanding the foregoing, such period of time shall not exceed one hundred eighty (180) days. For purposes of this Section, "Hedging Transaction" means any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the IPO Options or the shares of IESI held by the Executive." 3. Section 5(h) of the Employment Agreement is hereby amended and restated in its entirety: "Notwithstanding any provision to the contrary in any of the Employer's stock option plans or agreements, in the event of Executive's death or permanent disability or upon termination of this Agreement by Employer without Cause or by Executive with Good Reason (each, a "Trigger Event"): (A) any and all stock options that have been granted to Executive by the Employer shall be exercisable pursuant to their terms by Executive and/or his successor, assigns, administrators or executors during the ten years (plus any replacement options or time extensions to the existing options) that such stock options are outstanding and (B) upon any Trigger Event occurring during the Term and prior to an IPO, the Employer shall grant to the Executive (or his successor, assigns, administrators or executors in the case of Executive's death) the IPO Options. The IPO Options shall be granted pursuant to, and be governed by, the terms and provisions of the Plan and the Option Agreement, subject to the terms set forth in Section 4(g) hereof. Notwithstanding any provision set forth in the Plan or the Option Agreement to the contrary, the IPO Option shall expire in its entirety on the tenth anniversary of the applicable event. " 4. The first phrase of Section 6 of the Employment Agreement shall be amended and restated as follows: "For purposes of this Agreement, Change of Control shall be deemed to have occurred if:" 5. The following language shall be added to the end of Section 6 of the Employment Agreement: "For purposes of this Agreement, a "Change of Control" shall not include an IPO of the Common Stock or any person or group which may be deemed to have acquired control immediately following such IPO." 6. Except as expressly provided herein, all other terms and conditions of the Employment Agreement shall remain in full force and effect. 7. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas (determined without regard to the conflict of law provisions thereof). 8. This Amendment may be executed by the parties hereto in counterparts, each of which shall be deemed an original, but both such counterparts shall together constitute one and the same document. IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the day and year first written above. EXECUTIVE: /s/ Thomas J. Cowee -------------------------------- THOMAS J. COWEE EMPLOYER: IESI CORPORATION BY: /s/ Jeffrey J. Keenan ----------------------------- NAME: JEFFERY J. KEENAN TITLE: CHAIRMAN EX-10.3 4 i49644_x103.txt NON-QUALIFIED STOCK OPTION AGREEMENT IESI CORPORATION 1999 Stock Option Plan Non-Qualified Stock Option Agreement January 1, 2004 To: Charles F. Flood ---------------- Employee/Optionee This Agreement confirms the grant of an option to you effective as of January 1, 2004 (the "Effective Date") under the IESI Corporation 1999 Stock Option Plan (as amended, the "Plan"), upon the terms and conditions described herein. A copy of the Plan is being furnished to you concurrently with the execution of this Agreement. 1. Grant of Option. 1.1 Pursuant to action of the Committee under the Plan, IESI Corporation (the "Company") hereby grants to you an option to purchase (hereinafter called the "Option"), subject to the terms and conditions hereinafter set forth, an aggregate of 14,670 shares of the Class A Voting Common Stock (the "Common Stock") of the Company (the "Option Shares") at a per share purchase price equal to One Hundred Dollars ($100.00) (the "Exercise Price"). This grant is a matter of separate inducement and is not in lieu of salary or other compensation for your services. 1.2 The number of Option Shares and the Exercise Price shall be adjusted by the Committee, and you shall be entitled to such adjustment, upon the occurrence of any event described in Section 5 of the Plan. An equitable adjustment shall be determined by the Committee in good faith. 2. Exercise and Term of the Option. 2.1 Upon consummation of a firm commitment underwritten initial public offering (an "IPO") prior to January 1, 2005, the Option shall expire in its entirety and be null and void. 2.2 Unless accelerated under paragraph 2.3 below or terminated pursuant to paragraph 2.1 above, this Option should become vested and fully exercisable on the eighth anniversary of the Effective Date. 2.3 Notwithstanding the foregoing, the Option shall become fully vested and exercisable upon a Change in Control (as defined in your employment agreement in effect at such time). In the event that neither a Change in Control nor an IPO occurs prior to January 1, 2005, upon the effective date for the filing of a Registration Statement on Form S-1 for an IPO after January 1, 2005 (the "Second IPO"), the exercisability of the Option shall be accelerated with respect to an additional 25% of the Option Shares on each January 1 after the Effective Date (including each January 1 occurring prior to the Second IPO). 2.4 In the event of your death or permanent disability or upon termination of your employment by the Company without Cause (as defined in your employment agreement in effect at such time) or by you with Good Reason (as defined in your employment agreement in effect at such time), this Option shall be exercisable pursuant to its terms by you (or your successor, administrator or executors in the case of your death) during the ten years (plus any replacement options or time extension to the Option) that this Option is outstanding. 3. Certain Exercise Requirements. 3.1 If fewer than the number of Option Shares then available for purchase pursuant to the Option are purchased at any time under this Agreement, you may purchase the remaining Option Shares at any subsequent time during the term of the Option. The Option shall expire in its entirety on the tenth anniversary of the Effective Date subject to earlier termination or expiration as herein provided. The Option shall not be exercised for fractional shares. Notation of any partial exercise will be made by the Company on Schedule 1 attached hereto. 3.2 The Option is exercisable by you only while you are in the employ of, or providing service to, the Company or its subsidiaries as an employee, member of the Board or advisor or consultant, except as otherwise provided in the Plan. 4. Method of Exercise and Payment. 4.1 Exercise of the Option shall be by written notice, in a form substantially as attached to this Agreement as Exhibit A, delivered or mailed to the Secretary of the Company at its principal office specifying the number of Option Shares as to which the Option is being exercised, and identifying the Option by date of grant. Such notice shall be accompanied by the full amount of the Exercise Price for the Option Shares to be purchased in cash or by certified check, or by delivery of whole shares of Common Stock owned by you for at least six months ("Purchased Stock") in full or partial payment of the Exercise Price. You will receive a credit against the purchase price of the Option Shares as to which the Option is being exercised equal to the Fair Market Value of such Purchased Stock as of the close of the business day immediately preceding the date of delivery of the notice of election to exercise the Option. Any Purchased Stock being delivered must be accompanied by a duly executed assignment to the Company in blank or with stock powers attached, together with a written representation that such shares of Purchased Stock are owned by you free and clear of all liens, claims and encumbrances and such other representations as the Company shall determine. Only whole shares of Purchased Stock with a Fair Market Value up to, but not exceeding, the Exercise Price of the Option Shares as to which the Option is being exercised will be accepted hereunder. Purchased Stock may be delivered at the office of the Company or at the offices of the transfer agent appointed for the transfer of shares of the Company. The Committee may, in its discretion, refuse to accept any tendered payment in the form of Purchased Stock, in which case it shall deliver the tender back to you and notify you of its refusal. In order to preserve your rights under any Option, you must, within three business days after such notification, tender to the Company the cash or certified check required to pay for the Option Shares with respect to which such Option is being exercised. 4.2 It shall be a condition to the Company's obligation to deliver the Option Shares upon exercise of any portion of the Option that you pay, or make provisions satisfactory to the Company, for the payment of any taxes which the Company or any subsidiary is obligated to withhold or collect with respect to such exercise or otherwise with respect to the Option. 5. Transferability. Except as provided herein, your rights under the Option may not be transferred or encumbered by transferred by you, except by will or the laws of descent and distribution, or pursuant to a qualified domestic relations order (as defined in Section 414(p) of the Code). 6. Registration. The Company shall not be obligated to file any registration statement under the Act or any applicable state securities laws to permit exercise of the Option or to issue any Option Shares in violation of the Act or any applicable state securities laws. Certificates for Option Shares, when issued, shall have substantially the following legend, or statements of other applicable restrictions, endorsed thereon, and may not be immediately transferable: THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE TRANSFER OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE LAWS. The foregoing legend may not be required for Option Shares issued pursuant to an effective registration statement under the Act and in accordance with applicable state securities laws. 7. Incorporation of Plan Provisions. This Agreement is made pursuant to the Plan and is subject to all the terms and provisions of the Plan as if the same were fully set forth herein. Capitalized terms not otherwise defined herein shall have the meanings set forth for such terms in the Plan. 8. Shareholder Rights. You shall not be, nor have any of the rights or privileges of, a holder of Common Stock in respect of any Option Shares purchasable upon the exercise of the Option, including any rights regarding voting or payment of dividends, unless and until a certificate representing such Option Shares has been delivered to you. 9. Miscellaneous. This Agreement: (a) shall be binding upon and inure to the benefit of any successor of the Company and your successors, assigns and estate, including your executors, administrators and trustees; (b) shall be governed by the laws of the State of Delaware and any applicable laws of the United States; and (c) may not be amended except in writing and signed by both parties hereto. It is your intent and that of the Company that this Option is not classified as an "incentive stock option" within the meaning of Section 422(b) of the Code, and that any ambiguities in construction shall be interpreted in order to effectuate such intent. To confirm your acceptance of the foregoing, please sign and return one copy of this Agreement to Thomas J. Cowee, Senior VP and CFO, IESI Corporation. AGREED AND ACCEPTED JANUARY 1, 2004 /s/ Charles F. Flood IESI CORPORATION - -------------------------------------- Employee/Optionee Charles F. Flood By: /s/ Jeffrey J. Keenan - -------------------------------------- ------------------------------ Print Employee/Optionee Name Jeffrey J. Keenan Chairman EXHIBIT A IESI CORPORATION Stock Option Exercise Form -------------- (Date) IESI Corporation 6125 Airport Freeway Suite 202 Haltom City, TX 76117 Attention: Thomas J. Cowee, Senior VP and CFO Dear Sir/Madam: The undersigned elects to exercise the Option to purchase ______ shares of the Class A Voting Common Stock of IESI Corporation (the "Company") under and pursuant to the Non-Qualified Stock Option Agreement (the "Agreement") between the Company and the undersigned dated as of January 1, 2004. Delivered herewith in payment of the option price is: 1. a check in the amount of $_____ and/or 2. certificates for ___ shares of common stock of the Company, valued at $___________ with appropriate stock powers attached thereto, which shares are owned by the undersigned free and clear of all liens, claims and encumbrances. If the shares of the Company's Class A Voting Common Stock to be delivered to the undersigned upon this Option exercise are not subject to a current registration statement filed under the Securities Act of 1933, as amended (the "Act"), I hereby represent and agree that all of the shares of common stock being purchased hereunder are being acquired for investment and not with the view to the sale or distribution thereof, and that I understand that such shares of common stock are not currently registered under the Act and may not be sold, pledged, hypothecated, alienated or otherwise assigned or transferred in the absence of registration under the Act or an opinion of counsel, which opinion is satisfactory to the Company to the effect that such registration is not required. I hereby authorize the Company or any subsidiary corporation by which I am employed to withhold from any cash compensation paid to me, or in my behalf, an amount sufficient to discharge any Federal, State and local wage withholding taxes imposed on the Company, or the subsidiary corporation by which I am employed, in respect of my Option exercise of the Option. I agree that the Company, or the subsidiary corporation by which I am employed, may, in its discretion, hold the stock certificate to which I am entitled upon exercise of the Option, as security for the payment of the aforementioned withholding tax liability, until cash sufficient to pay that liability has been accumulated. Sincerely, Employee/Optionee Print Employee/Optionee Name SCHEDULE 1 NOTATION AS TO PARTIAL EXERCISE Number of Balance of Company Secretary Date of Shares Shares on or Ass't Secretary Notation Exercise Purchased Option Signature Date - -------- --------- ------ --------- ---- EX-10.4 5 i49644_x104.txt NON-QUALIFIED STOCK OPTION AGREEMENT IESI CORPORATION 1999 Stock Option Plan Non-Qualified Stock Option Agreement January 1, 2004 To: Thomas J. Cowee --------------- Employee/Optionee This Agreement confirms the grant of an option to you effective as of January 1, 2004 (the "Effective Date") under the IESI Corporation 1999 Stock Option Plan (as amended, the "Plan"), upon the terms and conditions described herein. A copy of the Plan is being furnished to you concurrently with the execution of this Agreement. 1. Grant of Option. 1.1 Pursuant to action of the Committee under the Plan, IESI Corporation (the "Company") hereby grants to you an option to purchase (hereinafter called the "Option"), subject to the terms and conditions hereinafter set forth, an aggregate of 8,836 shares of the Class A Voting Common Stock (the "Common Stock") of the Company (the "Option Shares") at a per share purchase price equal to One Hundred Dollars ($100.00) (the "Exercise Price"). This grant is a matter of separate inducement and is not in lieu of salary or other compensation for your services. 1.2 The number of Option Shares and the Exercise Price shall be adjusted by the Committee, and you shall be entitled to such adjustment, upon the occurrence of any event described in Section 5 of the Plan. An equitable adjustment shall be determined by the Committee in good faith. 2. Exercise and Term of the Option. 2.1 Upon consummation of a firm commitment underwritten initial public offering (an "IPO") prior to January 1, 2005, the Option shall expire in its entirety and be null and void. 2.2 Unless accelerated under paragraph 2.3 below or terminated pursuant to paragraph 2.1 above, this Option should become vested and fully exercisable on the eighth anniversary of the Effective Date. 2.3 Notwithstanding the foregoing, the Option shall become fully vested and exercisable upon a Change in Control (as defined in your employment agreement in effect at such time). In the event that neither a Change in Control nor an IPO occurs prior to January 1, 2005, upon the effective date for the filing of a Registration Statement on Form S-1 for an IPO after January 1, 2005 (the "Second IPO"), the exercisability of the Option shall be accelerated with respect to an additional 25% of the Option Shares on each January 1 after the Effective Date (including each January 1 occurring prior to the Second IPO). 2.4 In the event of your death or permanent disability or upon termination of your employment by the Company without Cause (as defined in your employment agreement in effect at such time) or by you with Good Reason (as defined in your employment agreement in effect at such time), this Option shall be exercisable pursuant to its terms by you (or your successor, administrator or executors in the case of your death) during the ten years (plus any replacement options or time extension to the Option) that this Option is outstanding. 3. Certain Exercise Requirements. 3.1 If fewer than the number of Option Shares then available for purchase pursuant to the Option are purchased at any time under this Agreement, you may purchase the remaining Option Shares at any subsequent time during the term of the Option. The Option shall expire in its entirety on the tenth anniversary of the Effective Date subject to earlier termination or expiration as herein provided. The Option shall not be exercised for fractional shares. Notation of any partial exercise will be made by the Company on Schedule 1 attached hereto. 3.2 The Option is exercisable by you only while you are in the employ of, or providing service to, the Company or its subsidiaries as an employee, member of the Board or advisor or consultant, except as otherwise provided in the Plan. 4. Method of Exercise and Payment. 4.1 Exercise of the Option shall be by written notice, in a form substantially as attached to this Agreement as Exhibit A, delivered or mailed to the Secretary of the Company at its principal office specifying the number of Option Shares as to which the Option is being exercised, and identifying the Option by date of grant. Such notice shall be accompanied by the full amount of the Exercise Price for the Option Shares to be purchased in cash or by certified check, or by delivery of whole shares of Common Stock owned by you for at least six months ("Purchased Stock") in full or partial payment of the Exercise Price. You will receive a credit against the purchase price of the Option Shares as to which the Option is being exercised equal to the Fair Market Value of such Purchased Stock as of the close of the business day immediately preceding the date of delivery of the notice of election to exercise the Option. Any Purchased Stock being delivered must be accompanied by a duly executed assignment to the Company in blank or with stock powers attached, together with a written representation that such shares of Purchased Stock are owned by you free and clear of all liens, claims and encumbrances and such other representations as the Company shall determine. Only whole shares of Purchased Stock with a Fair Market Value up to, but not exceeding, the Exercise Price of the Option Shares as to which the Option is being exercised will be accepted hereunder. Purchased Stock may be delivered at the office of the Company or at the offices of the transfer agent appointed for the transfer of shares of the Company. The Committee may, in its discretion, refuse to accept any tendered payment in the form of Purchased Stock, in which case it shall deliver the tender back to you and notify you of its refusal. In order to preserve your rights under any Option, you must, within three business days after such notification, tender to the Company the cash or certified check required to pay for the Option Shares with respect to which such Option is being exercised. 4.2 It shall be a condition to the Company's obligation to deliver the Option Shares upon exercise of any portion of the Option that you pay, or make provisions satisfactory to the Company, for the payment of any taxes which the Company or any subsidiary is obligated to withhold or collect with respect to such exercise or otherwise with respect to the Option. 5. Transferability. Except as provided herein, your rights under the Option may not be transferred or encumbered by transferred by you, except by will or the laws of descent and distribution, or pursuant to a qualified domestic relations order (as defined in Section 414(p) of the Code). 6. Registration. The Company shall not be obligated to file any registration statement under the Act or any applicable state securities laws to permit exercise of the Option or to issue any Option Shares in violation of the Act or any applicable state securities laws. Certificates for Option Shares, when issued, shall have substantially the following legend, or statements of other applicable restrictions, endorsed thereon, and may not be immediately transferable: THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE TRANSFER OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE LAWS. The foregoing legend may not be required for Option Shares issued pursuant to an effective registration statement under the Act and in accordance with applicable state securities laws. 7. Incorporation of Plan Provisions. This Agreement is made pursuant to the Plan and is subject to all the terms and provisions of the Plan as if the same were fully set forth herein. Capitalized terms not otherwise defined herein shall have the meanings set forth for such terms in the Plan. 8. Shareholder Rights. You shall not be, nor have any of the rights or privileges of, a holder of Common Stock in respect of any Option Shares purchasable upon the exercise of the Option, including any rights regarding voting or payment of dividends, unless and until a certificate representing such Option Shares has been delivered to you. 9. Miscellaneous. This Agreement: (a) shall be binding upon and inure to the benefit of any successor of the Company and your successors, assigns and estate, including your executors, administrators and trustees; (b) shall be governed by the laws of the State of Delaware and any applicable laws of the United States; and (c) may not be amended except in writing and signed by both parties hereto. It is your intent and that of the Company that this Option is not classified as an "incentive stock option" within the meaning of Section 422(b) of the Code, and that any ambiguities in construction shall be interpreted in order to effectuate such intent. To confirm your acceptance of the foregoing, please sign and return one copy of this Agreement to Thomas J. Cowee, Senior VP and CFO, IESI Corporation. AGREED AND ACCEPTED JANUARY 1, 2004 /s/ Thomas J. Cowee IESI CORPORATION - -------------------------------------- Employee/Optionee Thomas J. Cowee By: /s/ Jeffrey J. Keenan - -------------------------------------- ----------------------------- Print Employee/Optionee Name Jeffrey J. Keenan Chairman EXHIBIT A IESI CORPORATION Stock Option Exercise Form --------------- (Date) IESI Corporation 6125 Airport Freeway Suite 202 Haltom City, TX 76117 Attention: Thomas J. Cowee, Senior VP and CFO Dear Sir/Madam: The undersigned elects to exercise the Option to purchase ______ shares of the Class A Voting Common Stock of IESI Corporation (the "Company") under and pursuant to the Non-Qualified Stock Option Agreement (the "Agreement") between the Company and the undersigned dated as of January 1, 2004. Delivered herewith in payment of the option price is: 1. a check in the amount of $_____ and/or 2. certificates for ___ shares of common stock of the Company, valued at $___________ with appropriate stock powers attached thereto, which shares are owned by the undersigned free and clear of all liens, claims and encumbrances. If the shares of the Company's Class A Voting Common Stock to be delivered to the undersigned upon this Option exercise are not subject to a current registration statement filed under the Securities Act of 1933, as amended (the "Act"), I hereby represent and agree that all of the shares of common stock being purchased hereunder are being acquired for investment and not with the view to the sale or distribution thereof, and that I understand that such shares of common stock are not currently registered under the Act and may not be sold, pledged, hypothecated, alienated or otherwise assigned or transferred in the absence of registration under the Act or an opinion of counsel, which opinion is satisfactory to the Company to the effect that such registration is not required. I hereby authorize the Company or any subsidiary corporation by which I am employed to withhold from any cash compensation paid to me, or in my behalf, an amount sufficient to discharge any Federal, State and local wage withholding taxes imposed on the Company, or the subsidiary corporation by which I am employed, in respect of my Option exercise of the Option. I agree that the Company, or the subsidiary corporation by which I am employed, may, in its discretion, hold the stock certificate to which I am entitled upon exercise of the Option, as security for the payment of the aforementioned withholding tax liability, until cash sufficient to pay that liability has been accumulated. Sincerely, Employee/Optionee Print Employee/Optionee Name SCHEDULE 1 NOTATION AS TO PARTIAL EXERCISE Number of Balance of Company Secretary Date of Shares Shares on or Ass't Secretary Notation Exercise Purchased Option Signature Date - -------- --------- ------ --------- ---- -----END PRIVACY-ENHANCED MESSAGE-----