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EXHIBIT 99.26
UNIT OPTION AGREEMENT
This Unit Option Agreement (this "Agreement"), is entered into as of
___________, 1997 by and between IMNLLC, a Texas limited liability company (the
"Company"), and _____________, an employee (the "Employee") of the Company.
The Company desires to provide the Employee an opportunity to purchase
its Class C Non-Voting Non-Transferable Units of ownership interest in the
Company (the "Class C Units") in order to carry out the purposes of the
Company's 1995 Class C Unit Option Plan (the "1995 Plan").
The parties agree as follows:
1. GRANT. The Company grants to the Employee the right (the
"Options") to purchase 50,000 Class C Units (the "Option Units") on the terms
and conditions set forth in this Agreement.
2. PURCHASE PRICE. The Purchase Price for the Option Units (the
"Purchase Price") will be $10.00 per Class C Unit.
3. EXERCISE.
(a) Options may be exercised, from time to time, as to any
or all of the Option Units which are then vested. Options may not be exercised
unless and until they are vested.
(b) Options may not be exercised as to less than 1,000
Option Units at any one time. Unless the Exercise Notice specifies otherwise,
the earliest vested Options will be exercised first.
(c) During the lifetime of the Employee, only the Employee
may exercise the Options. After the death of the Employee, the Options may be
exercised only by the personal representative of the Employee or the Employee's
successor by will or the laws of descent and distribution
4. VESTING.
(a) The Options will vest in accordance with the following
schedule:
(i) when net income of the Company is equal to or
greater than $1.00: 20% (i.e. 10,000)
(ii) when net income of the Company is equal to or
greater than $1,000,000.00: 40% (i.e. 20,000)
(iii) when net income of the Company is equal to or
greater than $5,000,000.00: 60% (i.e. 30,000)
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(iv) when net income of the Company is equal to or
greater than $10,000,000.00: 80% (i.e. 40,000);
and
(v) when net income of the Company is equal to or
greater than $15,000,000.00: 100% (i.e. 50,000)
(b) Notwithstanding Section 4(a), all Options will vest
immediately upon (i) the death of the Employee, (ii) the permanent disability of
the Employee (as determined by the Board of Directors of the Company), (iii)
upon the circumstances described in Section 10(b), or (iv) if Xxxxxxxxxx
Investments, Inc., Xxx X. Xxxxxxxxxx, Xx. or Xxx X. Xxxxxxxxxx, Xx. or their
heirs, assigns or affiliates or entities controlled by them do not own or
control a majority of the Class A Units of the Company.
5. EXPIRATION. The right to exercise the Options expires on the
earliest of (i) the 90th calendar day after the resignation or the termination
of the employment of the Employee, other than as a consequence of the events
described in Section 4(b) or upon expiration of the term of Employee's
Employment Agreement with the Company of even date, or (ii) the tenth
anniversary of the date of this Agreement.
6. FORFEITURE. If the Employee resigns or his employment is
terminated (other than as a consequence of any of the events described in
Section 4(b) or upon expiration of the term of Employee's Employment Agreement
with the Company of even date), the Employee will forfeit all unvested Options.
7. NOTICE OF EXERCISE; PAYMENT AND DELIVERY.
(a) The Options may be exercised by delivery of a written
notice (the "Exercise Notice") to the Company, signed by the person exercising
the Options and specifying the number of Options which are to be exercised.
(b) Each Exercise Notice must be accompanied by payment (by
check payable to the order of the Company) of the full Purchase Price for the
Option Units and all withholding taxes required to be collected by the Company
under Federal, State, or local law as a result of the exercise ("Withholding
Taxes").
(c) The Company will deliver a certificate representing the
Option Units purchased within thirty (30) days after receipt of the notice and
full payment of the Purchase Price and Withholding Taxes. Unless otherwise
requested by the person exercising the Options, the certificate for the Option
Units purchased will be registered in the name of the Employee and will be
delivered to the Employee at the Employee's address then listed on the books and
records of the Company.
8. PAYMENT WITH UNITS. Payment of any or all of the Purchase Price
and Withholding Taxes may be made with Class C Units, in which event the
certificates evidencing the Class C Units so to be used must accompany the
Exercise Notice and must be duly endorsed or accompanied by duly executed stock
powers to transfer the same to the Company. In lieu of using outstanding Class C
Units to pay the Purchase Price and Withholding Taxes, Class C Units as to which
the Options are then being exercised may be used, in which case the Exercise
Notice
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must include a statement directing the Company to withhold so many of the Option
Units that would otherwise have been delivered upon that exercise of this Option
as equals the number of Option Units that would have been transferred to the
Company if the Purchase Price and Withholding Taxes had been paid with
outstanding Class C Units. The Company will have no obligation to accept Class C
Units in payment of the Purchase Price if the Company is then prohibited from
purchasing or acquiring Class C Units thus tendered to it.
9. NON-TRANSFERABILITY. Unless specifically permitted by the
Committee, the Options may not be assigned, transferred, pledged or hypothecated
in any way, will not be assignable by operation of law, and will not be subject
to execution, attachment or similar process (each, a "Transfer"), other than by
will or the law of descent and distribution. Any attempted Transfer will be null
and void and without effect.
10. ADJUSTMENTS.
(a) If any Option is exercised subsequent to any dividend,
split, reverse split, combination or exchange of Class C Units, or any
recapitalization or reorganization occurring after the date of this Agreement,
as a result of which (i) units of any class shall be issued in respect of
outstanding Class C Units or (ii) Class C Units are changed into the same or a
different number of units of the same or another class or classes, the Employee
will receive, for the aggregate price paid upon such exercise, the aggregate
number of the class of units which, if Class C Units had been purchased at the
date hereof for the same aggregate price (on the basis of the price per share
set forth in Paragraph 2 hereof) and had not been disposed of, such person or
persons would be holding, at the time of such exercise, as a result of such
purchase and all such share dividends, splitups, combinations or exchanges of
shares, recapitalizations or reorganizations. No fractional unit will be issued
upon any such exercise and the aggregate Purchase Price will be appropriately
reduced to reflect any fractional unit not issued.
(b) Upon (i) the dissolution or liquidation of the Company,
or (ii) a merger or consolidation of the Company as a result of which the Class
C Units are changed into or exchanged for cash, property or securities not of
the Company's issue, all Options will immediately vest unless provision is made
in connection with such transaction for the assumption of the Options, or the
substitution for the Options of options covering the securities of a successor
employer corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of securities and prices.
11. GENERAL. The Company will at all times during the term of the
Options reserve and keep available Class C Units sufficient to satisfy the
requirements of this Option Agreement. The Company will pay all original issue
and transfer taxes with respect to, and all other fees and expenses incurred by
the Company in connection with, the issuance of Option Units.
12. MISCELLANEOUS.
(a) The Options are not intended to be incentive stock
options as defined in Section 422 of the Internal Revenue Code.
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(b) The Employee will not have any of the rights of a member
with respect to the Option Units until delivery of the Option Units certificates
in accordance with Section 7(c) and execution by the Employee of the Amended and
Restated Regulations of the Company, whereby the Employee agrees to be bound by
all of the terms and provisions thereof.
(c) Nothing in this Option Agreement effects the rights and
obligations of the Employee and Company pursuant to the Employment Agreement of
even date between the parties.
IN WITNESS WHEREOF, this Option Agreement is entered into by the
Employee and by the Company as of the date first above written.
IMNLLC
By: _____________________________________
Xxx X. Xxxxxxxxxx, Xx., President
_________________________________________
[Optionee]
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