As filed with the Securities and Exchange Commission on May 2, 1996.
Registration No. 33-
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
RESOURCE AMERICA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1521 Locust Street, Philadelphia, PA 19102 72-0654145
(State or (Address of Principal (Zip Code) (I.R.S.
other Executive Offices) Employer
jurisdiction Identification No.)
of incorporation)
RESOURCE AMERICA, INC. 1989 KEY EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
Michael L. Staines
Senior Vice President
Resource America, Inc.
1521 Locust Street
Philadelphia, PA 19102
(Name and address of agent for service)
(215) 546-5005
(Telephone number, including area code, of agent for service)
Copy to:
J. Baur Whittlesey, Esquire
Ledgewood Law Firm, P.C.
1521 Locust Street - Eighth Floor
Philadelphia, PA 19102
(215) 731-9450
<PAGE>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered unit(2) price(2) fee
- ------------------------------------------------------------------------------
Class A Common
stock, par value
$.01 per
share 146,068 shares $ 48.75 $7,120,815 $ 2,456.68
interests in
the Plan (1) $ $ $
-------------- ------- -------- --------
- ------------------------------------------------------------------------------
(1) There are no interests to be offered or sold pursuant to the employee
benefit plan described herein.
(2) Estimated solely for purposes of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 on the
basis of $48.75 per share, the average of the high and low prices of
the Registrant's Common Stock as reported on the Nasdaq National
Market on April 26, 1996.
<PAGE>
EXPLANATORY NOTE
----------------
Pursuant to General Instruction C of Form S-8, this Registration
Statement contains a prospectus meeting the requirements of Part I of Form
S-3 relating to a reoffer by a certain entity of shares of Common Stock
of Resource America, Inc. acquired pursuant to the Resource America, Inc.
1989 Key Employee Stock Option Plan.
CROSS-REFERENCE SHEET
---------------------
ITEM NUMBER LOCATION IN REOFFER
IN FORM S-3 PROSPECTUS
1. Forepart of Registration Statement and
Outside Front Cover Page .......................... Facing Page, Cross
Reference Sheet, Cover
Page of Prospectus
2. Inside Front and Outside Back Cover Pages
of Prospectus...................................Available Information,
Incorporation of Certain
Documents by Reference,
Table of Contents
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges............Cover page, Registrant's
Form 10-KSB for the
fiscal year ended
September 30, 1995,
Registrant's Form 10-QSB
for the quarter ended
December 31, 1995
4. Use of Proceeds........................................Use of Proceeds
5. Determination of Offering Price....................................N/A
6. Dilution...........................................................N/A
7. Selling Security Holders...................................Cover Page,
Selling Shareholder
8. Plan of Distribution.......................................Cover Page,
Plan of Distribution
9. Description of Securities to be Registered.........................N/A
10. Interests of Named Experts and Counsel..........Legal Opinion, Experts
11. Material Changes...................................................N/A
<PAGE>
12. Incorporation of Certain Information................ .Incorporation of
Certain Documents
by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities........................................Indemnification of
Directors and Officers
*Document incorporated by reference
<PAGE>
PROSPECTUS
RESOURCE AMERICA, INC.
11,236 Shares of Class A Common Stock
This Prospectus may be used by the Estate of Francis J. Bagnell (the
"ESTATE"), an affiliate of Resource America, Inc., a Delaware corporation
("RAI"), to sell shares (the "SHARES") of Class A common stock, $.01 par
value, of RAI (the "COMMON STOCK"), which Shares were acquired by the
Estate upon the exercise of certain stock options granted to Francis J.
Bagnell, the late President of RAI, by RAI pursuant to the Resource
America, Inc. 1989 Key Employee Stock Option Plan (the "OPTION PLAN").
The Common Stock is traded on the Nasdaq National Market under the
symbol "REXI." It is anticipated that the Estate will offer the Shares
for sale at prevailing prices on Nasdaq National Market on the date of
sale. All proceeds from any sales of the Shares will inure to the benefit
of the Estate. RAI will not receive any of the proceeds from the sale of
the Shares which may be offered hereby. All expenses of registration
incurred in connection herewith are being borne by RAI, but the Estate
will bear all selling and other expenses incurred in connection with the
sale of the Shares.
No underwriting is being utilized in connection with this
registration of Common Stock and, accordingly, the Shares are being
offered without underwriting discounts. Normal brokerage commissions,
discounts and fees will be payable by the Estate. The Estate and any
broker executing selling orders on behalf of the Estate may be deemed to
be an "underwriter" within the meaning of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), in which event commissions received by
such broker may be deemed to be underwriting commissions under the
Securities Act.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________________
The date of this Prospectus is May 2, 1996.
<PAGE>
TABLE OF CONTENTS
-----------------
AVAILABLE INFORMATION....................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..........................3
RESOURCE AMERICA, INC....................................................4
USE OF PROCEEDS..........................................................4
SELLING SHAREHOLDER......................................................4
PLAN OF DISTRIBUTION.....................................................5
LEGAL MATTERS............................................................5
EXPERTS..................................................................5
<PAGE>
AVAILABLE INFORMATION
-----------------------
RAI is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "COMMISSION"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission located at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and the Commission's regional offices at 500 West
Madison Street, Chicago, Illinois 60661 and World Trade Center, New York,
New York 10048. Copies of such materials can also be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
RAI has filed with the Commission a Registration Statement on Form
S-8 (together with any amendments thereto, the "REGISTRATION
STATEMENT"), under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), with respect to the securities offered hereby. This Prospectus,
which constitutes a part of the Registration Statement, omits certain
information contained in the Registration Statement as permitted by the
rules and regulations of the Commission. For further information with
respect to RAI and the securities offered hereby, reference is made to the
Registration Statement and the exhibits and financial statements, notes
and schedules filed as part thereof or incorporated by reference therein,
which may be inspected at the public reference facilities of the
Commission, at the addresses set forth above. Statements made in this
Prospectus concerning the contents of any documents referred to herein are
not necessarily complete, and in each instance are qualified in all
respects by reference to the copy of such document filed as an exhibit to
the Registration Statement or incorporated by reference therein.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
-----------------------------------------------
The following documents, previously filed with the Commission (File
No.0-4408) pursuant to Section 13 of the Exchange Act, are incorporated
by reference herein and made a part hereof: (i) RAI's Annual Report on
Form 10-KSB for the fiscal year ended September 30, 1995; (ii) RAI's
Quarterly Report on Form 10-QSB for the quarter ended December 31, 1995;
and (iii) the description of RAI's Common Stock contained in Form 8-A
filed with the Commission, pursuant to Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
<PAGE>
All reports and any definitive proxy or information statements filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of
filing of such documents. 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 Prospectus to the
extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
RAI will provide without charge, to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the documents referred to above which have been or
may be incorporated in this Prospectus by reference (other than exhibits
not specifically incorporated by reference into the texts of such
documents). Written or oral requests for such copies should be directed
to: Secretary, Resource America, Inc., 1521 Locust Street, Philadelphia,
Pennsylvania 19102, (215) 546-5005.
RESOURCE AMERICA, INC.
----------------------
Resource America, Inc. ("RAI") is a specialty-finance company
involved in the acquisition and management of income producing partnership
related assets principally in two industries: real estate finance and
energy.
In real estate, RAI is currently focused on the purchase at a
discount of income producing real estate mortgages in the $1 Million to
$10 Million range - a range that has been largely overlooked by the
large national and international financial institutions. RAI has been
able to purchase sixteen such mortgages representing a total mortgage
receivable in excess of $52 Million at an aggregate cost of $18 Million
from such institutions. RAI has been able to generate income from the
restructuring of several such mortgages. RAI intends to purchase at a
discount additional real estate loans with yields which are generally
similar to those of its current mortgage portfolio. RAI has financed its
mortgage purchases through the use of internally generated cash and
through borrowings from an insurance company.
In energy, RAI produces, transports and operates natural gas and oil
properties for its own account and that of investors. RAI has interests in
767 wells, operating approximately 680 of those wells (primarily in Ohio,
New York and Pennsylvania), and owns and/or operates approximately 310
miles of gas pipelines in its producing fields in those states.
Additionally, RAI holds mineral rights under approximately 88,000 net
acres. Through a subsidiary, RAI provides well services to others.
<PAGE>
RAI's principal executive offices are located at 1521 Locust Street,
Philadelphia, Pennsylvania 19102 and its telephone number is
(215) 546-5005.
USE OF PROCEEDS
---------------
The Shares which are registered hereby are to be sold for the account
of the Estate. Accordingly, RAI will not receive any of the proceeds from
the sale of the Shares by the Estate.
SELLING SHAREHOLDER
-------------------
The Shares being registered for reoffer and resale hereunder by the
Estate are the only securities of RAI owned by the Estate. The Shares
were acquired pursuant to the exercise of stock options granted to
Francis J. Bagnell, deceased President and Director of RAI, pursuant to
the Option Plan prior to his death. The Estate may resell all, a portion,
or none of such Shares.
PLAN OF DISTRIBUTION
----------------------
Any of the Shares sold pursuant to this Prospectus will be sold by
the Estate for its own account and it will receive all proceeds from any
such sales. The Estate has not advised RAI of any specific plans for the
distribution of the Shares covered by this Prospectus, but, if and when
the Shares are sold, it is anticipated that the Shares will be sold from
time to time primarily in transactions on Nasdaq National Market at the
market price then prevailing, although sales may be made in negotiated
transactions or otherwise, at prices related to such prevailing market
price or otherwise. If the Shares are sold through brokers, the Estate
may pay customary brokerage commissions and charges.
LEGAL OPINION
-------------
The validity of the shares of Common Stock being offered hereby is
being passed upon for RAI by Ledgewood Law Firm, P.C. ("LEDGEWOOD"),
counsel to RAI. Edward E. Cohen, of counsel to Ledgewood, is a principal
shareholder of RAI as well as the Chairman, Chief Executive Officer,
President and a director.
EXPERTS
-------
The consolidated financial statements of RAI included in RAI's Annual
Report on Form 10-KSB for the fiscal year ended September 30, 1995 and
incorporated by reference in this Prospectus, have been so incorporated
herein in reliance upon the reports of Grant Thornton LLP, independent
accountants, given on the authority of said firm as experts in accounting
and auditing.
<PAGE>
PART I
------
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
the Introductory Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
the Introductory Note to Part I of Form S-8.
PART II
-------
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Resource America, Inc. (the "REGISTRANT")
and the Resource America, Inc. 1989 Key Employee Stock Option Plan (the
"PLAN") filed or to be filed with the Securities and Exchange Commission
(the "COMMISSION") are incorporated by reference in this Registration
Statement as of their respective dates:
1. The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended September 30, 1995 containing the audited consolidated
financial statements of the Registrant for the fiscal years ended
September 30, 1994 and 1995.
2. The Registrant's Quarterly Report on Form 10-QSB for the
quarter ended December 31, 1995.
3. The description of the Common Stock of the Registrant (formerly
called Resource Exploration, Inc.) contained the Registrant's Registration
Statement on Form 8-A, Commission number 0-4408, pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be part hereof from the date of
filing of such documents.
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Registrant's Common Stock being registered hereby
is being passed upon by Ledgewood Law Firm, P.C. ("LEDGEWOOD"), counsel to
the Registrant. Edward E. Cohen, of counsel to Ledgewood, is a principal
shareholder of the Registrant as well as President and a director.
Item 6. Indemnification of Directors and Officers.
Pursuant to the bylaws of the Registrant, the Registrant is required
to indemnify any director or officer who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he is or was a director or
officer, as the case may be, of the Registrant.
Item 7. Exemption from Registration Claimed.
The securities to be reoffered or resold pursuant to this
Registration Statement were issued in a private offering pursuant to
Section 4(2) of the Securities Act to fewer than ten individuals all of
whom were officers and/or directors of the Registrant at the time the
securities were issued
Item 8. Exhibits.
The following exhibits are filed herewith:
Exhibit
No. Document
- ------- -----------------------------------
4 Resource America, Inc. 1989 Key Employee Stock Option Plan.
5 Opinion of Ledgewood Law Firm, P.C. as to the legality of
securities being registered (including consent).
24(a) Consent of Grant Thornton LLP.
24(b) Consent of Ledgewood Law Firm, P.C. (included in
Exhibit 5).
25 Power of Attorney (included as part of signature pages to
this Registration Statement).
<PAGE>
Item 9. Undertakings.
Undertakings required by Item 512(a) of Regulation S-K
- ------------------------------------------------------
The undersigned Registrant 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;
(ii) to reflect in the prospectus any facts 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 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 paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, 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.
Undertakings required by item 512(b) of Regulation S-K
- ------------------------------------------------------
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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 the initial
bona fide offering thereof.
<PAGE>
Undertakings required by Item 512(h) of Regulation S-K
- ------------------------------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant, the Registrant has been advised that in the
opinion of the 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 Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of an action, suit or proceeding) is asserted by such
director, offering or controlling person in connection with the securities
being registered, the Registrant 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 of such
issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Philadelphia,
Commonwealth of Pennsylvania, on April 30, 1996.
RESOURCE AMERICA, INC.
By: /s/ Edward E. Cohen
-------------------
Edward E. Cohen
President
(Chief Executive Officer)
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Plan Committee has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Philadelphia, Commonwealth of Pennsylvania, on April 30, 1996.
RESOURCE AMERICA, INC. 1989 KEY
EMPLOYEE STOCK OPTION PLAN
By: /s/ Carlos C. Campbell
----------------------------------
Carlos C. Campbell
Committee Chairman
POWER OF ATTORNEY
Each person whose signature appears below in so signing also makes,
constitutes and appoints Edward E. Cohen and Michael L. Staines, and each
of them acting alone, his or her true and lawful attorney-in-fact,
with full power of substitution, for him or her in any and all capacities,
to execute and cause to be filed with the Securities and Exchange
Commission any and all amendments and post-effective amendments to this
Registration Statement, with exhibits thereto and other documents in
connection therewith, and hereby ratifies and confirms all that said
attorney-in-fact or said attorney-in-fact's substitute or
substitutes may do or cause to be done by virtue hereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ Edward E. Cohen Date: April 30, 1996
- -----------------------------------------
EDWARD E. COHEN, Chairman of
the Board and President
/s/ Michael L. Staines Date: April 30, 1996
- -----------------------------------------
MICHAEL L. STAINES, Senior
Vice President and
Secretary and a Director
/s/ Carlos C. Campbell Date: April 30, 1996
- -----------------------------------------
CARLOS C. CAMPBELL, Director
/s/ John R. Hart Date: April 30, 1996
- -----------------------------------------
JOHN R. HART, Director
/s/ Andrew M. Lubin Date: April 30, 1996
- -----------------------------------------
ANDREW M. LUBIN, Director
/s/ Alan D. Schreiber, M.D. Date: April 30, 1996
- -----------------------------------------
ALAN D. SCHREIBER, M.D., Director
/s/ John S. White Date: April 30, 1996
- -----------------------------------------
JOHN S. WHITE, Director
/s/ Nancy J. McGurk Date: April 30, 1996
NANCY J. MCGURK, Vice President -
Finance and Treasurer (Chief Accounting
Officer)
<PAGE>
EXHIBIT INDEX
Exhibit No. Document Page
- ----------- -------------------------------------------- ------
4 Resource America, Inc. 1989 Key Employee Stock Option Plan. 13
5 Opinion of Ledgewood Law Firm, P.C. as to the legality 27
of securities being registered (including consent).
24(a) Consent of Grant Thornton LLP 30
24(b) Consent of Ledgewood Law Firm, P.C. (included in
Exhibit 5).
25 Power of Attorney (included as part of signature pages
to this registration statement).
RESOURCE AMERICA, INC.
1989 KEY EMPLOYEE STOCK OPTION PLAN
-----------------------------------
This is the 1989 Key Employee Stock Option Plan of Resource America,
Inc., effective as of October 31, 1989.
Section 1. Definitions. As used in the Plan the following terms
shall have the following assigned meanings.
(a) Board of Directors. Board of Directors shall mean the Board of
Directors of the Company.
(b) Code. Code shall mean the Internal Revenue Code of 1986, as
amended.
(c) Company. Company shall mean Resource America, Inc., its
successors and assigns and any corporation which (i) substitutes a new
Option or Stock Appreciation Right for an old option or Stock Appreciation
Right granted under the Plan (ii) assumes an Option or Stock Appreciation
Right under the Plan or (iii) becomes a parent or subsidiary of the
Company by reason of a corporate merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation within the
meaning of 5425(a) of the Code.
(d) Committee. Committee shall mean that subcommittee of the Board
of Directors known as the Compensation Committee which is duly authorized
by the Board of Directors to administer the Plan.
(e) Disability. Disability shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code.
(f) Eligible Employee. Eligible Employee shall mean a common law
employee of the Company whose initiative and effort has contributed or may
in the future contribute to the Company's success.
(g) Fair market value. Fair market value shall mean the arithmetic
mean of the closing bid and ask sale prices for the Shares reported by the
NASDAQ on a given day or if there is no sale on such day, then the
arithmetic mean of such closing bid and ask sale prices on the last
previous date on which a sale is reported.
(h) Incentive Stock Option. Incentive Stock Option shall mean an
Option granted under the Plan which qualifies under 5422A of the Code.
(i) Nonqualified Stock option. Nonqualified Stock Option shall mean
any option granted under the Plan which does not qualify as an Incentive
Stock option and which is specifically designated at the time it is
granted as an option which is not an Incentive Stock Option.
(j) Option. Option shall mean either an Incentive Stock Option or a
Nonqualified Stock Option granted under the Plan.
<PAGE>
(k) Option Agreement. Option Agreement shall mean any definitive
written agreement between the Company and an Eligible Employee which
complies with the Plan and which pertains to the grant of an option and/or
Stock Appreciation Right to an Eligible Employee under the Plan.
(l) Option Price. Option Price shall mean the purchase price which
an Optionee must pay to the Company to acquire Shares on the exercise of
an Option.
(m) Optionee. Optionee shall mean an Eligible Employee to whom an
Option or Stock Appreciation Right is granted under the Plan.
(n) Plan. Plan shall mean the 1989 Key Employee Stock Option Plan
of the Company.
(o) Securities Acts. Securities Acts shall mean the Securities and
Exchange Act of 1933, as amended, and all applicable federal and state
securities law, or any successors thereto.
(p) Shares. Shares shall mean shares of the Company's common stock,
$0.01 par value, and (i) any stock or securities of the Company into which
such common stock is converted, (ii) any stock or securities of the
Company which are distributed with respect to such common stock and (iii)
the stock and securities of any other corporation into which such common
stock is converted as a result of the Company's engaging in any
transaction described in Section 425(a) of the Code.
(q) Stock Appreciation Right. Stock Appreciation Right shall mean
a right granted to an Optionee which upon the surrender of an Option,
entitles the Optionee to receive payment from the Company in an amount
equal to the excess of the aggregate Fair Market Value of Shares subject
to such option, determined at the time of such surrender, over the
aggregate Option Price applicable to such Shares.
Section 2. Purpose of the Plan. The purpose of the Plan is to
advance the interests of the Company and its stockholders by providing a
means through which Eligible Employees may be given an opportunity to
benefit from both the purchase Shares under options and the exercise of
Stock Appreciation Rights so that the Company may retain and attract
personnel upon whose judgment, initiative and efforts the successful
conduct of the Company and its business largely depends.
<PAGE>
Section 3. Shares Subject to the Plan. Subject to the adjustments
provided for in Subsection 7(g), the aggregate number of Shares for which
Options or Stock Appreciation Rights may be granted under the Plan shall
be 700,000; PROVIDED, HOWEVER, that whatever number of Shares shall remain
reserved for issuance under the Plan at the time of any stock split, stock
dividend or other change in the Company's capitalization shall be
appropriately and proportionately adjusted to reflect such stock dividend,
stock split or change in capitalization. Any Shares which are subject to
the Plan shall be made available from the authorized but unissued or
reacquired Shares of the Company. Any Shares for which an Option is
granted hereunder that are released from any option for any reason, other
than the exercise of a Stock Appreciation Right granted under the Plan,
shall become available for other options granted under the Plan.
Section 4. Administration of the Plan. The Plan shall be
administered by the Committee. The Committee shall consist of at least
two members of the Board of Directors, none of whom shall be eligible to
receive Options or Stock Appreciation Rights under the Plan. The Board of
Directors, acting as a body, may from time to time remove members from, or
add members to the Committee. The Committee shall elect one of its
members as Chairman, and shall hold meetings at such times and in such
places as it shall deem advisable. All actions of the Committee shall be
taken by a majority vote of all of its members present at any properly
convened meeting of the Committee. Any action of the Committee may be
taken by written instrument signed by a majority of all of its members and
any actions so taken shall be fully effective as if they had been taken by
a majority vote of the members of the Committee at a duly convened
meeting. The Committee may appoint a secretary to take minutes of its
meetings and the Committee shall make such rules and regulations for the
conduct of its business as it shall deem advisable.
Subject to the provisions of the Plan, the Committee shall at its
discretion:
(a) Determine who among the Eligible Employees shall be granted
options and Stock Appreciation Rights and the number of Shares to be
subject to such Option or Stock Appreciation Right;
(b) Determine the time or times at which options and Stock
Appreciation Rights shall be granted;
(c) Determine the option Price of the Shares subject to each option
or Stock Appreciation Right;
(d) Determine the time or times when each Option or Stock
Appreciation Right shall become exercisable and the term of such Option
or Stock Appreciation Right;
(e) Grant cash bonuses which are conditioned upon an Optionee's
exercise of options granted under this Plan;
(f) Authorize payment of the Option Price in cash, Shares or a
combination of cash and Shares; and
(g) Interpret the provisions of the Plan or any Option or Stock
Appreciation Right granted under the Plan, including all attendant option
Agreements, and any such interpretation shall be final, conclusive and
binding upon the Company and all optionees.
Section 5. Granting of Options. The Committee may from time to time
designate who among the Eligible Employees are to be granted options to
purchase Shares under the Plan, the number of Shares which shall be
subject to each Option and the type of option. The Committee shall direct
an appropriate officer of the Company to execute and deliver option
Agreements to such Eligible Employees reflecting the grant of Options.
Section 6. Grant of Stock Appreciation Rights. The Committee may
from time to time designate who among the Eligible Employees are to be
granted Stock Appreciation Rights under the Plan, the number of Shares to
which such Stock Appreciation Rights shall be subject and the terms and
conditions affecting such Stock Appreciation Right. The Committee shall
direct an appropriate officer of the Company to execute and deliver Option
Agreements to such Eligible Employees reflecting the grant of the Stock
Appreciation Rights. The Committee may determine the form of the payment
(i.e. Shares, cash or a combination of Shares and cash) to be received by
such Eligible Employee upon the exercise of a Stock Appreciation Right.
Shares which are the subject of any Option that is surrendered in
connection with the exercise of a Stock Appreciation Right.shall not be
available for the grant of future options under the'Plan.
Section 7. Terms and Conditions Common to All Option Agreements.
Each Option Agreement shall be evidenced by a written agreement executed
by the Optionee and the Company in such form as the Committee shall from
time to time approve. The Option Agreement shall contain such terms and
conditions as the Committee shall deem appropriate, subject to the
following:
(a) Optionee's Employment. The Option Agreement may provide that
the Optionee agrees to remain an employee of, and render services to the
Company for a specified period of time as condition to his exercise of his
option or Stock Appreciation Right. The option Agreement shall not impose
any obligation on the Company to retain the optionee as an employee for
any period or adversely effect the Optionee's "employment at will" status
with the Company.
(b) Number of Shares. The option Agreement shall, subject to
Subsection 7(g), set forth the number of Shares which are subject to
Options and/or Stock Appreciation Rights granted to the Optionee under the
Plan.
(c) No Obligation to Exercise. The option Agreement shall not
obligate the Optionee to exercise any Option or Stock Appreciation Right.
<PAGE>
(d) Term of Options and Stock Appreciation Rights. The Option
Agreement shall establish the period during which each option and Stock
Appreciation Right is exercisable; PROVIDED, HOWEVER, no Option Agreement
shall provide for the exercise of any option or Stock Appreciation Right
after the expiration of the ten (10) year period immediately following the
date upon which such option or Stock Appreciation Right is granted.
(e) Exercise of options and Stock Appreciation Rights. The option
Agreement shall provide for (and may limit or restrict) the date or dates
upon which any option or Stock Appreciation Right granted under the Plan
may be exercised. The option Agreement may provide for the exercise of
Options and Stock Appreciation Rights in installments and upon such terms
and conditions as the Committee may determined. The option Agreement
shall also provide that during a period of not less than twelve (12)
months immediately following the date upon which an optionee receives a
"hardship withdrawal" from a retirement plan qualifying under Section
401(k) of the Code, that all rights of the Optionee to exercise Options
granted under the Plan shall be suspended.
(f) Transferability of options and Stock Appreciation Rights. The
option Agreement shall provide that during the lifetime of an optionee,
the Options and Stock Appreciation Rights granted to him under the Plan
shall be exercisable only by him and shall not be assignable or
transferable by him; PROVIDED, HOWEVER, that the Option Agreement may
provide for transferability or assignability of options and Stock
Appreciation Rights by will or under the applicable laws of dissent and
distribution.
(g) Adjustments. The option Agreement may contain such
provisions as Committee considers appropriate to adjust the number
of Shares subject to options and Stock Appreciation Rights in the
event of a stock dividend, stock split, reorganization, recapitalization,
combination of shares, merger, consolidation or any other change in the
corporate structure or Shares of the Company or any other similar
transaction to which the Company is a party. If such adjustment is made,
the number of Shares subject to the provisions of the Plan thereupon shall
be adjusted correspondingly. In the event that an adjustment to the
number of Shares subject to options or Stock Appreciation Rights has been
made pursuant to the preceding two sentences, the Committee shall make
appropriate adjustments to the option Price (per share) so that the
Optionee's economic benefit from the exercise of the remaining options or
Stock Appreciation Rights shall be neither better nor worse than would
have existed prior to such adjustments. The foregoing adjustments shall
be made by the Committee as its members may determine, which determination
shall be final, binding and conclusive on the Company and the optionees.
The grant of an option or Stock Appreciation Right under the Plan shall
not affect the right or power of the Company to make adjustments,
classifications, reorganizations or changes in its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
Section 8. Terms and Conditions Common to options. An Option
Agreement which evidences the grant of an option shall contain such terms
and conditions as the Committee shall deem -appropriate, subject to
Section 7 and the following:
(a) Payment of option Price. The option Agreement shall provide
that the Option Price shall be payable in full upon the exercise of an
Option and must be paid in cash, by check or by the surrender of Shares
(if approved by the Committee); PROVIDED, HOWEVER, that Shares may not be
surrendered in payment of the option Price if such surrender of Shares
will adversely effect the continued qualification of any Incentive Stock
Option (whether or not granted under the Plan). No stock certificate
representing Shares shall be issued until full payment therefore has been
received by the Company.
(b) Death or Disability of optionee. The option Agreement shall
provide that if an Optionee should die or suffer a Disability while an
employee of the Company or within a period of three (3) months immediately
following the termination of his employment with the Company, his option
privileges shall cease; PROVIDED, HOWEVER, that the Option Agreement may
provide that the option privileges which were immediately exercisable by
the optionee at the time of his death or Disability may be exercised by
him or either his personal representative or designated beneficiary, as
the case may be, during a period not exceeding (1) year following the date
upon which the earlier of his Disability or death occurred, but in no
event after the total term of the option as set forth in the Option
Agreement.
(c) Registration. The option Agreement may provide for the issuance
of Shares which are registered under the Securities Acts. The Plan shall
not obligate the Company to issue Shares which are registered under the
Securities Acts. The option Agreement may provide that if the Shares are
issued upon the exercise of an Option, and such Shares are not registered
under the Securities Acts, that the Company may grant to the Optionee
certain rights to cause such Shares to be so registered and to require the
Optionee to deliver to the Company sufficient representations and
investment letters as may be reasonably required by the Company in order
to assure that the Company's issuance of Shares to such Optionee is either
exempt from registration under the Securities Acts or does not constitute
a violation of the Securities Acts which determination shall be made by
counsel selected by the Committee.
Section 9. Terms and Conditions of Incentive Stock Options. Each
Option Agreement which evidences the grant of an Incentive Stock Option
shall contain such terms and conditions as the Committee shall deem
appropriate, subject to Sections 7 and 8, and the following:
<PAGE>
(a) Option Price. The Option Agreement shall, subject to Subsection
7(g), set forth the Option Price (per share) as determined by the
Committee, which Option Price shall not be less than one hundred percent
(100%) of the Fair Market Value of the Shares on the date the Option is
granted; PROVIDED, HOWEVER, any Incentive Stock Option that is granted to
Eligible Employee who, at the time such Incentive Stock Option is granted,
is deemed for the purposes of Section 422A of the Code to own Shares
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of a parent or subsidiary of the
Company, shall be granted at an option Price of at least one hundred ten
percent (110%) of the Fair Market value of such Shares.
(b) Term of Incentive Stock Options Granted to Ten Percent
Shareholders. If an Incentive Stock Option is granted to an Eligible
Employee who, at the time such Incentive Stock option is granted, is
deemed for the purposes of Section 422A of the Code to own Shares
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of a parent or subsidiary of the
Company, then the term of such Incentive Stock Option shall be limited to
five (5) years.
(c) Other Termination of Employment. The Option Agreement may
provide that if an Optionee shall cease to be employed by the Company for
any reason other than his death or Disability his option privileges shall
cease; provided, however, that the Option Agreement may provide that the
option privileges which were immediately exercisable by the Optionee on
the date of his termination of employment with the Company may be
exercised by him during a period not exceeding three (3) months following
the date of such termination, but in no event after the total term of the
Incentive Stock option as set forth in the Option Agreement.
(d) Notice of Disqualifying Disposition. The option Agreement may
provide that if an Optionee shall sell or otherwise dispose of Shares
which were acquired by him through the exercise of an Incentive Stock
Option and such disposition occurs within two years of the date upon which
the Incentive Stock Option was granted or within one year following the
date the Shares were transferred to him upon the exercise of such
Incentive Stock Option, such Optionee shall give written notice to the
Company which notice shall contain each of the following items:
(i) The number of Shares sold or otherwise disposed,
(ii) The date or dates of such sale or disposition,
(iii)The selling price for each Share sold or disposed, and
(iv) The Option Price applicable to each Share sold or disposed.
The written notice required by this Subsection 9(d) must be received
by the Company within fifteen (15) days of any disqualifying disposition.
<PAGE>
(e) $100,000 Per Year Limitation. The Option Agreement shall
provide that aggregate Fair Market Value of Shares (determined as of the
date such Incentive Stock Options were granted) with respect to which
Incentive Stock Option are exercisable for the first time by any Optionee
during any calendar year (under the Plan and all other incentive stock
option plans sponsored by the Company) shall not exceed $100,000.
Section 10. Terms and Conditions of Nonqualified Stock Options.
Each Option Agreement which evidences the grant of a Nonqualified Stock
Option shall contain such terms and conditions as the Committee shall deem
appropriate, subject to Sections 7 and 8, and the following:
(a) Designation as a Nonqualified Stock option. The option
Agreement shall provide, that under no circumstances shall the
Nonqualified Stock Option be deemed to qualify as an Incentive Stock
option.
(b) No Interference with Incentive Stock Options. The Option
Agreement shall contain no provisions which adversely effects the
qualification of any Option which is intended to be an Incentive Stock
Option under Section 422A of the Code.
(c) Withholding. The Option Agreement shall provide that there shall
be deducted from each distribution of Shares receivable by Optionee on the
exercise of a NonQualified Stock Option, the amount of withholding or
other taxes required to be withheld by any governmental authority. Such
withholding may be accomplished by either (i) the Optionee's deposit of
cash with the Company in an amount equal to the required withholding
amount (the "Deposit Method") or (ii) the Optionee's surrender in the
exercise of a Stock Appreciation Right, options covering a sufficient
number of Shares so that the distribution of cash upon the exercise of
such Stock Appreciation Right will provide the Company with the required
withholding amount (the "SAR Method"). The selection between the Deposit
method and the SAR Method shall be made by the optionee and such selection
shall be contained in the Optionee's timely notice of exercise of his
Nonqualified Stock option. If the optionee fails to properly select
between the two withholding alternatives, the SAR Method shall be used.
(g) Option Price. The option agreement shall, subject to Subsection
7(g), set forth the Option Price (per share) as determined by the
Committee.
(d) Other Termination of Employment. The Option Agreement may
provide that if an Optionee shall cease to be employed by the Company for
any reason other than his death or Disability, his option privileges shall
cease; provided, however, that the Option Agreement may provide that the
option privileges which were immediately exercisable by the optionee on
the date of his termination of employment with the Company may be
exercised by him during a period not exceeding one (1) year following the
date of such termination, but in no event after the total term of the
Option is set forth in the option Agreement.
<PAGE>
Section 11. Terms and Conditions of Stock Appreciation Rights. Each
Option Agreement which evidences the grant of Stock Appreciation Rights
shall contain such terms and conditions as the Committee shall deem
appropriate, subject to Section 7 and the following:
(a) No Interference with Incentive Stock Options. The Option
Agreement pursuant to which Stock Appreciation Rights are granted shall
contain no provision which adversely affects the qualification of any
Option intended to be an Incentive Stock Option under 5422A of the Code.
To that end, (i) any Stock Appreciation Right which is exercised in
connection with the cancellation or surrender of an Incentive Stock Option
may only be exercisable when the Fair Market Value of each Share which is
the subject matter of the Incentive Stock option exceeds the Option Price,
(ii) the Stock Appreciation Right may be transferred only when the
underlying Incentive Stock Option is otherwise transferable and (iii) the
exercise of the Stock Appreciation Right must have the same economic and
tax consequences to the Optionee as would arise as a result of the
exercise of the Incentive Stock option followed immediately by a sale of
the acquired Shares.
(b) Withholding. The Option Agreement shall provide that there
shall be deducted from any distribution resulting from the exercise of a
Stock Appreciation Right that amount which equals the withholding or other
taxes required to be withheld by any governmental authority.
Section 12. Rights as a Shareholder. An Optionee or a transferee of
an option shall have no rights as a shareholder of the Company with
respect to any Shares which are subject to an Option until the issuance of
the stock certificates representing such Shares.
Section 13. Modification, Extension and Renewal of Options. Subject
to the terms and conditions of the Plan, the Committee may modify, extend
or renew outstanding options granted under the Plan or accept the
surrender of outstanding Options and authorize the granting of new options
in substitution therefor. Shares which are the subject matter of lapsed
options, may be granted in options to other Eligible Employees at any time
during the term of this Plan. Notwithstanding the foregoing, no
modification of an option shall, without the consent of the optionee,
alter or impair the rights or obligations of any Optionee with respect to
any Option granted under the Plan.
<PAGE>
Section 14. Indemnification of Committee. In addition to such other
rights of indemnification as they may have as members of the Board of
Directors, members of the Committee shall be indemnified by the Company
against the reasonable expenses, including attorneys fees, actually and
necessarily incurred by them in connection with the defense of any action,
suit or other proceeding through which any of them may be a party as a
result of any action or failure to act under or in connection with the
Plan, any Option Agreement or any Option granted thereunder, and against
all amounts paid in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Company) or paid in
satisfaction of a judgment in any suc h action, suit or other proceeding;
PROVIDED, HOWEVER, that no member of the Committee shall be indemnified
for any such expenses or amounts relating to matters as to which it is
determined in such action, suit or other proceeding that such member of
the Committee is liable for gross negligence or wanton misconduct in the
performance of his duties.
Section 15. Amendment and Termination of the Plan. The Company by
action of the Board of Directors, reserves the right to amend, modify or
terminate this Plan at any time or by action of the Board of Directors,
and with the consent of the effected Optionee, amend, modify or terminate
any outstanding option Agreement, except that the Company may not, without
further shareholder approval, increase the total number of Shares for
which options may be granted under the Plan (except for increases
attributable to adjustments authorized in the Plan), change the employees
or class of employees who are Eligible Employees or materially increase
the benefits accruing to Optionees under the Plan. Moreover, no action
may be taken by the Company (without the consent of the effected optionee)
which will impair the validity of any Option or Stock Appreciation Right
then outstanding or which will prevent an Incentive Stock Option from
continuing to qualify under Section 422A of the Code.
Section 16. Effective Date of Plan. This Plan shall be effective
upon its adoption by the Board of Directors. The Plan shall be submitted
to the stockholders of the Company for approval within twelve (12) months
after its adoption by the Board of Directors and, if the Plan shall not be
approved by the shareholders within such twelve month period, the Plan
shall be void and of no effect. Any Options or Stock Appreciation Rights
granted under the Plan prior to the date of approval by the stockholders
shall be void if such shareholders, approval is not timely obtained.
Section 17. Expiration of Plan. Options may be granted under this
Plan at any time on or prior to the date which is ten (10) years
immediately following effective date of the Plan.
<PAGE>
AMENDMENT NO. 1
TO THE
RESOURCE AMERICA, INC.
1989 KEY EMPLOYEE STOCK OPTION PLAN
The RESOURCE AMERICA, INC., 1989 KEY EMPLOYEE STOCK OPTION PLAN (the
"Plan"), effective October 1, 1989, is hereby amended as follows:
1. Section 1(p) of the Plan is amended to read in its
entirety as follows:
(p) Shares. Shares shall mean the shares of the Company's
Class A common stock, $0.01 par value, and (i) any stock or securities of
the Company into which such common stock is converted, (ii) any stock or
securities of the company which are distributed with respect to such
common stock and (iii) the stock and securities of any other corporation
into which such common stock is converted as a result of the Company's
engaging in any transaction described in Section 425(a) of the Code.
2. Section 3 of the Plan is amended by increasing the
number of shares for which Options or Stock Appreciation Rights may be
granted under the Plan from 70,000 (as adjusted for the 10-to-1
reverse stock split) to 140,000.
3. All references in the Plan to "Section 422A of the Code"
shall be deemed to refer to "Section 422 of the Code."
4. The effective date of Section 1 of this Amendment is
October 16, 1995. The effective date of Section 2 of this Amendment shall
be the later of the date the Amendment is approved by an affirmative vote
of the majority of the shareholders of Resource America, Inc., or the
date of adoption by the Board of Directors. The effective date of Section
3 of this Amendment shall be November 5, 1990.
5. All other terms of the Plan shall remain in full force
and effect.
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
executed by its duly authorized officers on this 29th day of November, 1995.
RESOURCE AMERICA, INC.
By: /s/ Edward E. Cohen
--------------------------------
President
Attest: /s/ Michael L. Staines
--------------------------------
Secretary
LEDGEWOOD LAW FIRM
A PROFESSIONAL CORPORATION
1521 LOCUST STREET
------------ Exhibit 5
TELEPHONE: (215) 731-9450 o FAX: (215) 735-2513
April 29, 1996
Resource America, Inc.
1521 Locust Street, Suite 400
Philadelphia, PA 19102
Gentlemen/Ladies:
We have acted as counsel to Resource America, Inc. ("RAI") in
connection with the preparation and filing by RAI of a registration
statement (the "Registration Statement") on Form S-8 under the
Securities Act of 1933, as amended (the "Act"), with respect to the
registration of options (the "Options") to purchase 146,068 shares of RAI
Class A Common Stock, par value $.01 per share (the "Common Stock"),
issued or to be issued in connection with the Resource America 1989 Key
Employee Stock Option Plan (the "Plan"), and the Common Stock underlying
the Options upon exercise thereof. In connection therewith, you have
requested our opinion as to certain matters referred to below.
<PAGE>
In our capacity as such counsel, we have familiarized ourselves with
the actions taken by RAI in connection with the registration of the
Options and the Common Stock. We have examined the originals or
certified copies of such records, agreements, certificates of public
officials and others, and such other documents, including the Registration
Statement, as we have deemed relevant and necessary as a basis for the
opinions hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures on original documents and the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all copies submitted to us as conformed or photostatic
copies, and the authenticity of the originals of such latter documents.
We are attorneys admitted to practice in the Commonwealth of Pennsylvania
and, accordingly, we express no opinion with respect to matters governed
by the laws of any jurisdiction other than the Commonwealth of
Pennsylvania and the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that:
1. RAI is a corporation which has been duly formed, is validly
existing and is in good standing under the laws of the State of Delaware.
RAI has full power and authority to issue the Common Stock.
2. When issued as set forth in the Registration Statement, the
Options will be validly issued, fully paid and non-assessable and when
issued and paid for in accordance with the terms of the Options, the
Common Stock will be validly issued, fully paid and non-assessable.
We consent to the references to this opinion and to Ledgewood Law
Firm, P.C., in the Prospectus included as part of the Registration
Statement, and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ledgewood Law Firm, P.C.
Ledgewood Law Firm, P.C.
<PAGE>
CONSENT OF GRANT THORNTON LLP
We have issued our reports dated November 23, 1995 accompanying the
consolidated financial statements of Resource America, Inc. and Subsidiaries
included in the Annual Report on Form 10KSB for the year ended September 30,
1995 which are incorporated by reference in this Registration Statement. We
consent to the incorporation by reference in the Registration Statement of the
aforementioned reports and to the use to our name as it appears under the
caption "Experts."
/s/ Grant Thornton LLP
Cleveland, Ohio
May 2, 1996
