EXHIBIT 10.7
RESTRICTED STOCK UNIT AWARD AGREEMENT
(Exchange of Employee Stock Options)
This Restricted Stock Unit Award Agreement (the "RSU Agreement") is made
and entered into as of the 18th day of February 2009, by and between The
InterGroup Corporation , a Delaware corporation (the "Company"), and John V.
Winfield (the "Employee").
WITNESETH:
WHEREAS, on December 3, 2008, the Board of Directors of the Company
adopted, subject to shareholder approval, The InterGroup Corporation 2008
Restricted Stock Unit Plan (the "Plan"), which was approved and ratified by the
shareholders of the Company on February 18, 2009;
WHEREAS, the Plan provides that the Compensation Committee of the Board of
Directors (the Compensation Committee") shall be responsible for administering
the Plan and shall have the power and authority to, among other things,
establish and implement an exchange program that would permit the Company to
offer holders of awards issued under prior shareholder approved compensation
plans to exchange certain stock options for Restricted Stock Units ("RSUs") for
the delivery of shares of common stock of the Company ("Common Stock") in the
future, subject to certain vesting requirements and such restrictions and
conditions as may be established by the Compensation Committee;
WHEREAS, on December 15, 2008, the Compensation Committee authorized an
offer to be made by the Company to issue RSUs in exchange for 225,000 fully
vested stock options held by Employee on the terms and conditions set forth in
the Exchange Offer attached hereto as Exhibit A and incorporated herein by
reference, which was accepted by Employee;
WHEREAS, the Plan provides that no awards of RSUs shall vest until at lease
six (6) months after shareholder approval of the plan with the Compensation
Committee to set forth a vesting schedule and other terms and restrictions for
the RSUs to be awarded under the Plan;
WHEREAS, Employee desires to receive the RSUs upon the terms and subject to
the conditions set forth in this RSU Agreement;
NOW, THEREFORE, in consideration of the premises, of the mutual promises,
covenants and conditions herein contained, for the purposes and objectives set
forth in this RSU Agreement and the Plan and for other good and valuable
consideration, including the exchange of stock options, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to
be legally bound, hereby agree as follows:
1. Definitions. In addition to the words and terms elsewhere defined
in this RSU Agreement, certain capitalized words and terms used herein shall
have the meanings given to them by the definitions and descriptions in the
Plan, unless the context or use indicates another or different meaning or
intent, and such definitions shall be equally applicable to both the singular
and plural forms of any capitalized words and terms defined in the Plan.
2. Grant of RSUs. Pursuant to the terms of the Exchange Offer, the
Company awarded to Employee 84,628 RSUs for the delivery of 84,628 shares of
the Common Stock of the Company subject to a vesting schedule and other terms
and conditions set forth in this RSU Agreement and the Plan.
3. Vesting Schedule. The RSUs shall vest and the shares of Common
Stock become deliverable on the following dates and in the following amounts:
September 10, 2009 - 54,628 shares
September 10, 2010 - 15,000 shares
September 10, 2011 - 15,000 shares
4. Vesting Upon Sale, Merger, Extraordinary Corporate Events. All RSUs
issued pursuant to this RSU Agreement shall immediately vest upon the sale,
merger, consolidation or liquidation of the Company or upon such other
extraordinary corporate events as may be determined by the Compensation
Committee.
5. Stockholder Rights. RSUs awarded to Employee shall have none of the
rights of a stockholder, including voting rights, until the vesting of the RSUs
and the delivery of the shares Common Stock.
6. Non-transferability of RSUs. RSUs are personal to Employee and no
RSUs may be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated otherwise than by will or the laws of descent and distribution,
and the Common Stock to be issued pursuant to the RSUs shall be issued during
the lifetime of Employee only to Employee.
7. Termination of Employment. If the Employee's employment by the
Company shall terminate for any reason other than death, disability or
termination for cause, the Employee shall have the right to retain RSUs not yet
vested in exchange for continued services to the Company and/or its
subsidiaries in an advisory capacity or for services as a member of the
Company's Board of Directors as may be determined by the Compensation
Committee. If the Employee's employment shall terminate because of discharge
for cause, the RSUs shall terminate on the date of the Employee's discharge.
8. Termination of RSUs Upon Death or Disability. In the event of the
Employee's death or disability while in the employ of the Company prior to
vesting of the RSUs or Employee's death within six months after the termination
of the Employee's employment (other than by reason of discharge for cause) the
RSUs shall terminate 12 months after the date of the Employee's death or
disability date.
9. Leave of Absence. A leave of absence, unless otherwise determined
by the Board prior to the commencement thereof, shall not be considered a
termination of employment. The RSUs shall not be affected by any change of
employment so long as Employee continues to be an Employee of the Company or a
Subsidiary.
10. Right of Company to Terminate Employment. Nothing contained in the
Plan or in this RSU Agreement shall confer on Employee the right to continue in
the employ of the Company or any Subsidiary or interfere in any way with the
right of the Company or a Subsidiary to terminate the employment of Employee at
any time, with or without cause.
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11. Non-alienation of Benefits. No right or benefit under the Plan or
this RSU Agreement shall be subject to anticipation, alienation, sale,
assignment, hypothecation, pledge, exchange, transfer, encumbrance or charge,
and any attempt to anticipate, sell assign, hypothecate, pledge, exchange,
transfer, encumber or charge the same shall be void. No right or benefit
hereunder shall in any manner be liable for or subject to the debts, contracts,
liabilities or torts of the person entitled to such benefit.
12. Termination and Amendment. No termination, modification or
amendment of the Plan or of this RSU Agreement may, without the consent of
Employee, adversely affect the rights of Employee with respect to the RSUs.
13. Tax Withholding. The Company's obligation to deliver shares of
Common Stock upon the vesting of the RSUs shall be subject to applicable
federal, state and local tax withholding requirements. The Company shall have
the power and the right to deduct or withhold, or require Employee to remit to
the Company, the minimum statutory amount to satisfy federal, state, and local
taxes, domestic or foreign, required by law or regulation to be withheld with
respect to any taxable event arising as a result of the Plan. With respect to
withholding required upon the lapse of restrictions on RSUs, or any other
taxable event arising as a result of an Award granted under the Plan, Employee
may elect, subject to the approval of the Compensation Committee, to satisfy
the withholding requirement, in whole or in part, by having the Company
withhold Shares having a Fair Market Value on the date the tax is to be
determined equal to the minimum statutory total tax that could be imposed on
the transaction. All such elections shall be irrevocable, made in writing, and
signed by the Employee, and shall be subject to any restrictions or limitations
that the Compensation Committee, in its sole discretion, deems appropriate.
14. Separability. If any of the terms or provisions of this RSU
Agreement conflict with the requirements of Rule 16b-3 under the Exchange Act
(as the same shall be amended from time to time), then such terms or provisions
shall be deemed inoperative to the extent they so conflict with the
requirements of said Rule 16b-3.
15. Adjustments Upon Changes in Capitalization. In the event of changes
in the outstanding Common Stock of the Company by reason of any stock dividend,
distribution, split-up, recapitalization, subdivision, combination or exchange
of shares, merger, consolidation or liquidation and the like, the number and
class of shares subject to any outstanding RSUs and the vesting of the RSUs,
shall be appropriately adjusted by the Compensation Committee in its sole and
absolute discretion, whose determination shall be conclusive. The grant of the
RSUs shall not affect in any way the right or power of the Company to make
adjustments, reclassification, reorganizations or changes of its capital or
business structure, to merge or consolidate or dissolve, liquidate, sell or
transfer all or any part of its assets. All adjustments shall be rounded to
the lowest whole number of shares of Common Stock.
16. Obligations of the Company. In the event the RSUs do not vest as
provided for in this RSU Agreement, the Company shall have no further
obligations or liabilities to Employee arising out of or in any way connected
with this RSU Agreement.
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17. Representations, Warranties and Agreements of Employee. Employee
hereby represents, warrants and agrees as follows:(a) Employee is entering into
this RSU Agreement and the transactions herein contemplated based on Employee's
own familiarity with the relevant factors, and the Company has made no express
or implied representations, covenants or warranties to Employee except as
specifically set forth in this RSU Agreement and the Plan;
(b) Employee has thoroughly read the Plan and this RSU Agreement
and has been advised or has had the opportunity to be advised by
Employee's own legal counsel as to the consequences of Employee's
execution of this RSU Agreement.
(c) Employee has knowledge and experience in financial and business
matters and is capable of evaluating the risks of entering into this RSU
Agreement and of making an informed investment decision with respect to
the transactions contemplated in this RSU Agreement; and
(d) Employee has had the opportunity to ask questions of, and
receive answers from, the Company concerning the terms and conditions of
the transactions contemplated by this RSU Agreement and the Plan.
18. Conditions Precedent to Obligations of the Company. The obligations
of the Company under this RSU Agreement to deliver shares of Common Stock, are
at its option, subject to (i) receiving an opinion of counsel for the Company
that the Company has complied with or is exempt from (a) all applicable
registration requirements under the Securities Act of 1933, as amended (the
"Act"), (b) all applicable registration requirements under the securities laws
of any state, (c) all applicable listing requirements of any national
securities exchanges on which stock of the same class as Employee's Shares is
then listed or registered and (d) all other requirements of law or of any
regulatory body having jurisdiction over the issuance and delivery of
Employee's Shares; and (ii) Employee complying with all of the terms and
conditions of this RSU Agreement and the Plan.
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19. Restrictions on Transfer. Regardless of whether the offering and
sale of Employee's shares has been registered under the 1933 Act or has been
registered or qualified under the securities laws of any state, the Company may
impose restrictions on the sale, pledge or other transfer of Employee's shares
(including the placement of appropriate legends on stock certificates) if, in
the judgment of the Company and its counsel, such restrictions are necessary or
desirable in order to achieve compliance with the provisions of the 1933 Act,
the securities laws of any state or any other law. In the event that the sale
of Employee's shares is not registered under the 1933 Act, but an exemption is
available which required an investment representation or other representation,
Employee shall be required as a condition precedent to the Company's delivering
of shares to Employee, to represent that the shares are being acquired for
investment, and not with a view to the sale or distribution thereof, and to
make such other representations as are deemed necessary or appropriate by the
Company and its counsel. Any determination by the Company and its counsel in
connection with any of the matters set forth in this Section shall be
conclusive and binding on all persons. Stock certificates evidencing shares
acquired under this RSU Agreement pursuant to an unregistered transaction shall
bear the following restrictive legend and such other restrictive legends as are
required or deemed advisable under the provisions of any applicable law:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"). ANY TRANSFER
OF SUCH SECURITIES WILL BE INVALID UNLESS A
REGISTRATION STATEMENT UNDER THE 1933 ACT IS IN
EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF
COUNSEL FOR THE ISSUER SUCH REGISTRATION IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY
WITH THE 1933 ACT".
20. Registration or Qualification of Securities. The Company may, but
shall not be obligated to, register or qualify the issuance of the RSUs and/or
the sale of Employee's shares under the 1933 Act or any other applicable law.
21. Exchange of Certificates. If, in the opinion of the Company and its
counsel, any legend placed on a stock certificate representing Employee's
shares issued under this RSU Agreement is no longer required, the holder of
such certificate shall be entitled to exchange such certificate for a
certificate representing the same number of Employee's shares, but lacking such
legend.
22. Notices. All notices, requests, demands and other communication
hereunder shall be in writing and shall be deemed to have been duly given
(except as may otherwise be specifically provided herein to the contrary) if
(i) delivered by hand or telecopied and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) mailed by
certified or registered mail with postage prepaid or (iii) shipped and
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receipted by express courier service charges prepaid by shipper addressed as
follows (or to such other address as may be designated by notice given pursuant
hereto):
If to the Company: President
The InterGroup Corporation
820 Moraga Drive
Los Angeles, California 90049
Telecopy Number: (310) 889-2525
With a Copy to: Chief Financial Officer
The InterGroup Corporation
820 Moraga Drive
Los Angeles, California 90049
Telecopy Number: (310) 889-2525
And if to Employee: At Employee's principal residence as reflected in
the Company's employment records.
23. Waiver of Breach. The waiver of any party hereto of a breach of any
provision of this Stock Option Agreement shall not operate or be construed as a
waiver of any subsequent breach by any party hereto.
24. Binding Effect. Except as otherwise herein provided, this RSU
Option Agreement shall be binding upon, and shall inure to the benefit of, the
successors and assigns of the Company and Employee, and the Employee's personal
representatives and permitted assigns.
25. Amendments. No amendments or variations of the terms and conditions
of this Stock Option Agreement shall be valid unless the same is in writing and
signed by all the parties hereto.
26. Headings. The Section headings contained herein are for convenience
only and shall not in any way affect the interpretation or enforceability of
any provision of this RSU Agreement.
27. Gender. Unless the context otherwise requires a different meaning,
words of a masculine gender shall be deemed and construed to include
correlative words of feminine and neuter genders.
28. Governing Law. This RSU Agreement shall be construed and enforced
pursuant to the laws of the State of California.
29. Entire Agreement. This RSU Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated in this RSU Agreement.
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30. Priority. To the extent any of the terms of this RSU Agreement are
inconsistent with the terms of the plan, the terms of the Plan shall control to
the extent of such inconsistency.
31. Counterparts. This RSU Agreement may be executed in more than one
(1) counterpart and each counterpart shall be considered an original.
32. Inconsistencies. In the event of any inconsistency between this RSU
Agreement and the Plan, the Plan shall govern.
IN WITNESS WHEREOF, the Company has caused this RSU Agreement to be
executed by its duly authorized officer and Employee has executed this RSU
Agreement in two (2) counterparts all as of the day and year first above
written, but effective as of the Effective Date.
THE INTERGROUP CORPORATION
By: /s/ William J. Nance
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William J. Nance
Chairman, Compensation Committee
ACCEPTED AND AGREED TO:
/s/ John V. Winfield
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John V. Winfield
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EXHIBIT A
Text of
Exchange Offer
December 15, 2008
Dear Mr. Winfield:
Upon recommendation of the Compensation Committee, the Board of Directors of
The InterGroup Corporation (the "Company") has approved the 2008 Restricted
Stock Unit Plan (the "Plan") which will permit the Company to make an offer to
exchange your 225,000 stock options issued under the Company's 1998 Stock
Option Plan for Key Officers and Employees, that expire on December 21, 2008,
for restricted stock units ("RSUs"), each of which represents the right to
acquire, with no cash outlay by you, one share of the common stock of the
Company (the "Exchange Offer"). RSUs granted pursuant to the exchange are not
actual shares of the Company's common stock, but rather promises to deliver
shares of common stock in the future, subject to certain vesting requirements
and other restrictions as may be determined by the Committee. Until actual
delivery of the shares, RSUs have no voting rights and you will not be entitled
to any dividends that the Company might declare on its common stock
The number of RSUs you will receive in the exchange for any options surrendered
will be based on the difference between the fair market value ("FMV") of
Company's common stock on December 19, 2008, as determined by the closing price
of the common stock on the NASDAQ Stock Market on that date, and the exercise
price of your expiring stock options. For example, if the closing price of the
Company's common stock on December 19, 2008 is $11.00 per share, and the
exercise price of the options surrendered is $7.917 per share, the difference
would be $3.083 per share. The number of RSUs you would receive in exchange
will be calculated by multiplying the number of options surrendered by $3.0833,
with that product divided by the FMV of the common stock on December 19, 2008.
For example, if you surrendered all 225,000 options pursuant to the Exchange
Offer, the number of RSUs you would receive would be calculated as follows:
225,000 options x $3.083 = $693,742/$11.00 = 63,067 RSUs
The Company's right to issue RSUs is subject to shareholder ratification of the
Plan adopted by the Board of Directors. The Board of Directors has obtained the
written commitment of the directors holding a majority of the Company's
outstanding shares of common stock to vote in favor of ratification of the Plan
at the Company's annual meeting of shareholders, which is scheduled to be held
on February 18, 2009. Pursuant to the terms of the Plan, any awards of RSUs
shall not vest until at least six months after shareholder ratification of the
plan is obtained. Awards of RSUs are also subject to forfeiture if you
terminate your employment prior to vesting or do not meet other restrictions as
may be set by the Committee in your award agreement.
No payment from the holder will be required upon vesting of RSUs, but the stock
will be taxable at its FMV as ordinary income on the date that is delivered. As
an employee of the Company, you may be subject to certain tax withholding on
the delivery of your shares. Pursuant to the Plan, the Company shall have the
power and the right to deduct or withhold, or require s a Plan participant to
remit to the Company, the minimum statutory amount to satisfy federal, state
and local taxes, required by law or regulation to be withheld with respect to
any taxable event arising as a result of the Plan.
RSUs are personal to the grantee and are not transferable by the holder. The
stock to be delivered pursuant to the RSUs has not been registered under the
Securities Act of 1933, as amended (the "1933 Act"). Following ratification of
the Plan by the stockholders, the Company may, but shall not be obligated to,
register the shares subject to the plan under the 1933 Act or any other
applicable law. Shares of stock issued pursuant to the Plan may bear an
appropriate restrictive legend as determined by the Compensation Committee.
Participation in the Exchange Offer is voluntary and in your sole discretion as
the option holder. You may exchange all or part of your stock options that
expire on December 21, 2008 for RSUs. You may also choose to exercise all or
part of your stock options in accordance with the terms of your Stock Option
Agreement. You may also elect not to participate in the Exchange Offer or not
to exercise your options and let them expire as scheduled.
This Exchange Offer is limited to your stock options that are set to expire on
December 21, 2008 and is not applicable to any other stock option awards. The
Compensation Committee, in its sole discretion, may make other exchange offers
in the future, but is not obligated to do so.
If you are interested in participating in this Exchange Offer, please complete
and sign the form below and return to the Company's Assistant Secretary and
Counsel, Michael G. Zybala, by facsimile to 858-673-5406. If you prefer, you
can scan and E-mail your executed form to Mr. Zybala at mzybala@intgla.com. If
you have any questions, please contact Mr. Zybala directly at 858-673-4722 or
310-466-7961. To be effective, your acceptance must be received by the Company,
in writing, on or before December 21, 2008.
Sincerely,
/s/ William J. Nance
William J. Nance
Chair, Compensation Committee
_____________________________________________________________________________
Acceptance of Exchange Offer
The undersigned holder of Key Officer and Employee stock options set to expire
on December 21, 2008, hereby accepts the offer of The InterGroup Corporation to
exchange to following amount of stock options for restricted stock units for
shares of the Company's common stock in accordance with this Exchange Offer:
Name: John V. Winfield
Number of Stock Options to be exchanged: 225,000
Date: Dec. 21, 2008
Signature: /s/ John V. Winfield