Attached files
Exhibit 10.9
EMPLOYEE STOCK OPTION AGREEMENT
JOHN V. WINFIELD
This Stock Option Agreement (the "Agreement") is made and entered into as
of the 16th day of March 2010, by and between The InterGroup Corporation, a
Delaware corporation (the "Company"), and John V. Winfield ("Winfield" or the
"Employee").
W I T N E S E T H:
WHEREAS, on February 24, 2010, the shareholders of the Company approved
The InterGroup Corporation 2010 Omnibus Employee Incentive Plan (the "2010
Plan"), which was formally adopted by the Board of Directors on that date at
its Annual Board Meeting; and
WHEREAS, the Board of Directors considered at its Annual Board Meeting a
proposal for the grant of a total of 100,000 stock options pursuant to the 2010
Plan to the Company's President and CEO, John V. Winfield, on terms to be
determined by the Compensation Committee of the Board of Directors (the
"Compensation Committee") consistent with the terms and provisions of the 2010
Plan; and
WHEREAS, on March 16, 2010, the Compensation Committee determined that
Winfield, should be granted the right and option to purchase shares of Common
Stock of the Company in the amount and upon the upon the terms, and subject to
the conditions, set forth in this Agreement; and
WHEREAS, Employee desires to receive the right and option to purchase
shares of Common Stock upon the terms and subject to the conditions set forth
in this 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 Agreement and for other good and valuable consideration, 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 Agreement, certain capitalized words and terms used in this Agreement
shall have the meanings given to them by the definitions and descriptions in
the 2010 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
2010 Plan.
2. Grant of Stock Options. Effective, March 16, 2010, the Company
grants to Employee, and Employee hereby receives from the Company, the right
and option to purchase (the "Options") 100,000 shares of the Common Stock (the
"Option Shares") of the Company upon the terms, and subject to the conditions,
set forth in this Agreement and the 2010 Plan. The Options shall be considered
to be Nonqualified Stock Options under the terms of the 2010 Plan.
3. Term of Options. The term of the Options (the "Term") shall be for a
period of ten (10) years, beginning March 16, 2010 (the "Effective Date") and
ending on March 15, 2020 (the "Termination Date"), unless otherwise terminated
under the terms of this Agreement or the 2010 Plan.
4. Exercise Price. The Exercise Price of the Options shall be $10.30,
which was 100% of the Fair Market Value ("FMV") of the Company's Common Stock
as determined by reference to the closing price of the Company's Common Stock
as reported on the NASDAQ Capital Market on March 16, 2010, the date of grant.
5. Vesting Schedule and Requirements. The Options shall be subject to
the following time and performance based vesting requirements, both of which
must be met before the Options are fully vested and eligible to be exercised:
(a) Time Vesting Schedule. The Options shall vest in the following
amounts on the following dates:
March 16, 2011 - 20,000 shares
March 16, 2012 - 20,000 shares
March 16, 2013 - 20,000 shares
March 16, 2014 - 20,000 shares
March 16, 2015 - 20,000 shares
(b) Performance Based Vesting Requirements. In addition to the above
Time Vesting Schedule, the vesting of the Options is also subject to
Performance Based Vesting Requirements. Under the Performance Based Vesting
Requirements, the Options will vest in increments of 20,000 shares upon each
increase of $2.00 or more in the Fair Market Value of the Company's Common
Stock above the Exercise Price ($10.30) of the Options. To satisfy this
performance requirement, the Common Stock must trade at that increased level
for a period of at least ten (10) trading days during any one quarter during
the Term of the Options. For example, if the Company's Common Stock trades at
a level of $12.30 a share, or above, for at least ten (10) trading days during
any one quarter, the Performance Based Vesting Requirement will be satisfied
with respect to 20,000 shares. However, Options to purchase those 20,000 shares
will only be considered to be fully vested and exercisable if the applicable
time vesting requirement has also been met. For all the Options to vest under
this requirement, the Company's Common Stock has to trade at a level of at
least $20.30 for period of at least ten (10) trading days during any one
quarter during the Term.
6. Vesting Upon Sale, Merger, Extraordinary Corporate Events. All
Options issued pursuant to this 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.
7. Exercise of Options and Payment. The Options shall be exercisable
during the Term upon satisfaction of the vesting requirements set forth in
Section 5 hereof and any other applicable terms and conditions of this
Agreement. Options shall be exercised by the delivery of a written notice of
exercise to the Company, or an agent designated by the Company, setting forth
the number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares.
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A condition of the issuance of the Option Shares as to which an Option
shall be exercised shall be the payment of the Exercise Price. The Exercise
Price of any Option shall be payable to the Company in full either: (a) in cash
or its equivalent; (b) by tendering (either by actual delivery or attestation)
previously acquired shares of the Company having an aggregate Fair Market Value
at the time of exercise equal to the Exercise Price (provided that except as
otherwise determined by the Committee, the shares that are tendered must have
been held by the Employee for at least six (6) months (or such other period, if
any, as the Committee may permit) prior to their tender to satisfy the Exercise
Price if acquired under the 2010 Plan or any other compensation plan maintained
by the Company or have been purchased on the open market); (c) by a cashless
exercise (broker-assisted exercise) through a "same day sale" commitment; (d)
by utilizing a net gain procedure; (e) by a combination of (a), (b), (c) and
(d); or (f) any other method approved or accepted by the Committee in its sole
discretion.
The net gain procedure, is intended to work, in effect, like a stock-
settled SAR. An option holder who elects to use the net gain procedure will
receive the number of shares of common stock with a value equal to the
difference between the market price on the date of exercise and the exercise
price of the option, less applicable tax withholding. For example, if an
optionee has an option to acquire 300 shares at an exercise price of $10.00 per
share and exercises the option when the market price is $30.00 and the
withholding rate is 30%, the optionee would receive 140 shares (100 shares
would be withheld to pay the exercise price and 60 shares would be withheld to
pay the required withholding tax.
Subject to any governing rules or regulations, as soon as practicable
after receipt of written notification of exercise and full payment (including
satisfaction of any applicable tax withholding), the Company shall deliver to
the Employee share certificates in an appropriate amount based upon the number
of Option Shares purchased under the Option(s), or upon Employee's request,
evidence of book entry Shares.
All payments under all of the methods indicated above shall be paid in
United States dollars.
8. 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 Options shall terminate six months after the
Employee's employment terminates (unless the Employee dies during such period),
or on the Option's expiration date, if earlier, and shall be exercisable during
such period after termination of employment only with respect to the number of
shares which the Employee was entitled to purchase on the day preceding the
termination of the Employee's employment, except that the Compensation
Committee may, in specific cases, and in its sole discretion, permit exercise
by an Employee of all, or a part of, the unexercised Option within the period
referred to above after the Employee's employment terminates. 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 the Options 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 Options shall terminate on the date of the Employee's
discharge.
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9. Termination of Options 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 Options or Employee's death within six months after the
termination of the Employee's employment (other than by reason of discharge for
cause) the Options shall terminate 12 months after the date of the Employee's
death or disability date.
10. Leave of Absence. A leave of absence, unless otherwise determined by
the Compensation Committee prior to the commencement thereof, shall not be
considered a termination of employment. The Options shall not be affected by
any change of employment so long as Employee continues to be an Employee of the
Company or a Subsidiary.
11. Right of Company to Terminate Employment. Nothing contained in the
2010 Plan or in this 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.
12. Non-alienation of Benefits. No right or benefit under the 2010 Plan
or this 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.
13. Termination and Amendment. No termination, modification or
amendment of the 2010 Plan or of this Agreement may, without the consent of
Employee, adversely affect the rights of Employee with respect to the Options.
14. Tax Withholding. The Company's obligation to deliver the Option
Shares upon the vesting and exercise of the Options 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
exercise of the Options. With respect to withholding required upon the exercise
of the Options, 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.
15. Separability. If any of the terms or provisions of this 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.
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16. 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 Options and the vesting of the
Options, shall be appropriately adjusted by the Compensation Committee in its
sole and absolute discretion, whose determination shall be conclusive. The
grant of the Options 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.
17. Obligations of the Company. In the event the Options do not vest as
provided for in this Agreement, the Company shall have no further obligations
or liabilities to Employee arising out of or in any way connected with this
Agreement.
18. Representations, Warranties and Agreements of Employee. Employee
hereby represents, warrants and agrees as follows:
(a) Employee is entering into this 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 Agreement and the 2010 Plan;
(b) Employee has thoroughly read the 2010 Plan and this
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 Agreement;
(c) Employee has knowledge and experience in financial
and business matters and is capable of evaluating the risks
of entering into this Agreement and of making an informed
investment decision with respect to the transactions
contemplated in this 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 Agreement and the 2010 Plan.
19. Conditions Precedent to Obligations of the Company. The obligations
of the Company under this 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 Agreement and
the 2010 Plan.
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20. Restrictions on Transfer. Regardless of whether the offering and
sale of the Option 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 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".
21. Registration or Qualification of Securities. The Company may, but
shall not be obligated to, register or qualify the issuance of the Option
Shares and/or the sale of the Option Shares under the 1933 Act or any other
applicable law.
22. Exchange of Certificates. If, in the opinion of the Company and its
counsel, any legend placed on a stock certificate representing the Option
Shares issued under this 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 Option Shares, but lacking such legend.
23. 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
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):
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If to the Company: President
The InterGroup Corporation
10940 Wilshire Blvd., Suite 2150
Los Angeles, California 90024
Telecopy Number: (310) 889-2525
With a Copy to: Chief Financial Officer
The InterGroup Corporation
10940 Wilshire Blvd., Suite 2150
Los Angeles, California 90024
Telecopy Number: (310) 889-2525
And if to Employee: At Employee's principal residence as reflected
in the Company's employment records.
24. 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.
25. Binding Effect. Except as otherwise herein provided, this 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.
26. Amendments. No amendments or variations of the terms and conditions
of this Agreement shall be valid unless the same is in writing and signed by
all the parties hereto.
27. 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 Agreement.
28. 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.
29. Governing Law. This Agreement shall be construed and enforced
pursuant to the laws of the State of California.
30. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated in
this Agreement.
31. Priority. To the extent any of the terms of this Agreement are
inconsistent with the terms of the plan, the terms of the 2010 Plan shall
control to the extent of such inconsistency.
32. Counterparts. This Agreement may be executed in more than one (1)
counterpart and each counterpart shall be considered an original.
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33. Inconsistencies. In the event of any inconsistency between this
Agreement and the 2010 Plan, the 2010 Plan shall govern.
IN WITNESS WHEREOF, the Company has caused this Employee Stock
Option Agreement to be executed by its duly authorized officer and Employee has
executed this Employee Stock Option 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
----------------------
John V. Winfield
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