As filed with the Securities and Exchange Commission on June 16, 2010
Registration No. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE INTERGROUP CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 13-3293645
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
10940 Wilshire Blvd., Suite 2150
Los Angeles, California 90024
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(Address of Principal Executive Offices)
The InterGroup Corporation 2010 Omnibus Employee Incentive Plan
The InterGroup Corporation 2008 Restricted Stock Unit Plan
(Full title of the plan)
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Michael G. Zybala, Esq.
109410 Wilshire Blvd., Suite 2150
Los Angeles, California 90024
(310) 466-7961
(Name, address and telephone number of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act.
Large-accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [X]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered(1) per share(2) price(2) registration fee
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Common Stock, $.01 400,000(1) $15.15 $6,060,000 $432.08
par value
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(1) This Registration Statement covers 200,000 shares of Common Stock which are
issuable under The InterGroup Corporation 2010 Omnibus Employee Incentive
Plan and 200,000 shares of Common Stock issuable under The InterGroup
Corporation 2008 Restricted Stock Unit Plan. In addition, pursuant to Rule
416(c) under The Securities Act of 1933, this Registration Statement also
covers an indeterminate amount of additional shares of Common Stock to be
offered or sold pursuant to the Plans described herein by reason of any
stock dividend, stock split, recapitalization or other similar transactions
as required by the Plans.
(2) Estimated solely for the purpose of calculating the registration fee.
This estimate has been calculated in accordance with Rules 457(c) and Rule
457(h) under the Securities Act of 1933 and is based on the average of the
high and low prices for the Common Stock, as reported on the NASDAQ Stock
Market on June 15, 2010.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The InterGroup Corporation's Annual Report on Form 10-K and Form 10-K/A
(Amendment No. 1) for the fiscal year ended June 30, 2009;
(b)(i) The InterGroup Corporation's Quarterly Reports on Form 10-Q for the
quarterly periods ended September 30, 2009, December 31, 2009 and March 31,
2010;
(b)(ii) The InterGroup Corporation's Current Reports on Form 8-K dated
October 15, 2009, February 24, 2010, March 4, 2010; March 16, 2010; and
May 25, 2010.
(c) The description of The InterGroup Corporation's Common Stock as contained
in its Registration Statement on Form S-4 (Registration Number 33-00126) filed
on September 6, 1985, the Amendment to its Registration Statement on Form S-4
(Registration No. 33-00126) filed on October 23, 1985, and its Registration
Statement on Form 8-A filed on December 19, 1990 (Commission File No. 001-
10324), including any amendment or report filed for the purpose of updating
that description.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
filing of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have
been sold or which de-registers all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing such documents, except as to specific
sections of such statements as set forth therein. Unless expressly incorporated
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into this Registration Statement, a report "furnished" on Form 8-K prior or
subsequent to the date hereof shall not be incorporated by reference into this
Registration Statement. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Michael G. Zybala, the Assistant Secretary and General Counsel for The
InterGroup Corporation, is the counsel rendering an opinion in connection
herewith as to the validity of The InterGroup Corporation Common Stock
registered hereby. As of June 15, 2010, Mr. Zybala does not beneficially own
any shares of the Common Stock of The InterGroup Corporation. Mr. Zybala would
be eligible to participate in The InterGroup Corporation 2010 Omnibus Employee
Incentive Plan and The InterGroup Corporation 2008 Restricted Stick Unit Plan,
but has not been granted any awards pursuant to those plans.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person against expenses,
judgments, fines and amounts paid in settlements actually and reasonably
incurred by any such person in connection with a threatened, pending or
completed action, suit or proceeding, other than an action, suit or proceeding
in the name of the corporation, in which he is involved by reason of the fact
that he is or was a director, officer, employee or agent of such corporation,
provided that (i) he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and (ii) with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. If the action or suit is by or in the name of
the corporation, the corporation may indemnify any such person against expenses
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in the best interests of the corporation, except that
no indemnification may be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation, unless and only
to the extent that the Delaware Court of Chancery or the court in which the
action or suit is brought determines upon application that, despite the
adjudication of the liability but in light of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expense as
the court deems proper. The Bylaws of The InterGroup Corporation provides for
indemnification of persons to the extent permitted by the Delaware General
Corporation Law.
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In accordance with Section 102(b)(7) of the Delaware Law, the Certificate
of Incorporation, as amended, of The InterGroup Corporation limits the personal
liability of its directors for violations of their fiduciary duty. The
Certificate of Incorporation eliminates each director's liability to The
InterGroup Corporation or its stockholders for monetary damages except (i) for
any breach of the director's duty of loyalty to The InterGroup Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under the section
of the Delaware law providing for liability of directors for unlawful payment
of dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which a director derived an improper personal benefit. The
effect of this provision is to eliminate the personal liability of directors
for monetary damages for actions involving a breach of their fiduciary duty of
care, including any such actions involving gross negligence. This provision
will not, however, limit in any way the liability of directors for violations
of the Federal securities laws.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling The InterGroup
Corporation pursuant to the foregoing provisions, The InterGroup Corporation
has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable. Reference is made to Item 9 of the
undertakings with respect to indemnification for liabilities arising under the
Securities Act.
The InterGroup Corporation also provides insurance from commercial carriers
against some liabilities incurred by its officers and directors.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Number Exhibit Description
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4.1 Certificate of Incorporation, dated September 11, 1985,
incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4, filed on September 6,
1985 (Registration No. 33-00126) and Amendment 1 to that
Registration Statement filed on October 23, 1985.
4.2 Restated Certificate of Incorporation, dated March 9,
1998, incorporated by reference to Exhibit 3 of the
Company's Amended Quarterly Report on Form 10-QSB/A
for the period ended March 31, 1998, as filed on May 19,
1998 (Commission File No. 001-10324).
4.3 Certificate of Amendment to Certificate of Incorporation,
dated October 2, 1998, incorporated by reference to
Exhibit 3 of the Company's Quarterly report of Form 10-
QSB for the period ended September 30, 1998, as filed on
November 11, 1998 (Commission File No. 001-10324).
4.4 Certificate of Amendment of Certificate of Incorporation
filed with the Delaware Secretary of State on August 6,
2007, incorporated by reference to Exhibit 3.4 of the
Company's Annual Report on Form 10-KSB for the year ended
June 30, 2007 as filed on September 28, 2007 (Commission
File No. 001-10324).
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4.5 Amended and Restated By-laws of The InterGroup
Corporation, effective as of December 10, 2007,
incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K as filed on December 12, 2007
(Commission File No. 001-10324).
5.1 Opinion of Michael G. Zybala
23.1 Consent of Michael G. Zybala (set forth as part of
Exhibit 5.1)
23.2 Consent of Burr Pilger Mayer, Inc.
24 Power of Attorney (see signature pages)
99.1 The InterGroup Corporation 2010 Omnibus Employee
Incentive Plan, incorporated by reference to the
Company's Definitive Proxy Statement on Schedule
14A as filed on January 26, 2010 (Commission File No.
001-10324).
99.2 The InterGroup Corporation 2008 Restricted Stock Unit
Plan, incorporated by reference to the Company's
Definitive Proxy Statement on Schedule 14A as filed on
January 21, 2009 (Commission File No. 001-10324).
Item 9. Undertakings.
(a) The InterGroup Corporation hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities act of 1933;
(ii) to reflect in the prospectus any fact or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by The InterGroup
Corporation pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The InterGroup Corporation hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of The
InterGroup Corporation's annual report on Form 10-K pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
The InterGroup Corporation pursuant to the foregoing provisions, or otherwise,
The InterGroup Corporation has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by The InterGroup Corporation of expenses incurred or paid by a
director, officer or controlling person of The InterGroup Corporation in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, The InterGroup Corporation will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication for such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, The
InterGroup Corporation, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto authorized, in the City of Los Angeles, State of California on June
15, 2010.
THE INTERGRPOUP CORPORATION
By: /s/ John V. Winfield
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John V. Winfield, President
Chief Executive Officer and
Chairman of the Board
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints John V. Winfield, Gary N. Jacobs and
Michael G. Zybala, or any one of them, their true and lawful attorneys-in-fact
and agents, each with full power and substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or their substitution or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
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/s/ John V. Winfield Chairman of the Board, President June 15, 2010
---------------------- and Chief Executive Officer
John V. Winfield (Principal Executive Officer)
/s/ David T. Nguyen Treasurer and Controller June 15, 2010
---------------------- (Principal Accounting Officer)
David T. Nguyen
/s/ Josef A, Grunwald Vice Chairman of the Board June 15, 2010
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Josef A. Grunwald
/s/ Gary N. Jacobs Secretary and Director June 15, 2010
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Gary N. Jacobs
/s/ John C. Love Director June 15, 2010
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John C. Love
/s/ William J. Nance Director June 15, 2010
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William J. Nance
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EXHIBIT INDEX
Exhibit Number Exhibit Description
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4.1 Certificate of Incorporation, dated September 11, 1985,
incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-4, filed on September 6,
1985 (Registration No. 33-00126) and Amendment 1 to that
Registration Statement filed on October 23, 1985.
4.2 Restated Certificate of Incorporation, dated March 9,
1998, incorporated by reference to Exhibit 3 of the
Company's Amended Quarterly Report on Form 10-QSB/A
for the period ended March 31, 1998, as filed on May 19,
1998 (Commission File No. 001-10324).
4.3 Certificate of Amendment to Certificate of Incorporation,
dated October 2, 1998, incorporated by reference to
Exhibit 3 of the Company's Quarterly report of Form 10-
QSB for the period ended September 30, 1998, as filed on
November 11, 1998 (Commission File No. 001-10324).
4.4 Certificate of Amendment of Certificate of incorporation
filed with the Delaware Secretary of State on August 6,
2007, incorporated by reference to Exhibit 3.4 of the
Company's Annual Report on Form 10-KSB for the year ended
June 30, 2007 as filed on September 28, 2007 (Commission
File No. 001-10324).
4.5 Amended and Restated By-laws of The InterGroup
Corporation, effective as of December 10, 2007,
incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K as filed on December 12, 2007
(Commission File No. 001-10324).
5.1 Opinion of Michael G. Zybala
23.1 Consent of Michael G. Zybala (set forth as part of
Exhibit 5.1)
23.2 Consent of Burr Pilger Mayer, Inc.
24 Power of Attorney (see signature pages)
99.1 The InterGroup Corporation 2010 Omnibus Employee
Incentive Plan, incorporated by reference to the
Company's Definitive Proxy Statement on Schedule
14A as filed on January 26, 2010 (Commission File No.
001-10324).
99.2 The InterGroup Corporation 2008 Restricted Stock Unit
Plan, incorporated by reference to the Company's
Definitive Proxy Statement on Schedule 14A as filed on
January 21, 2009 (Commission File No. 001-10324).
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