s8for401kplan2013
As filed with the Securities and Exchange Commission on May 13, 2013
Registration No. 333-_______
UNITED STATES
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)
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Delaware | 72-0654145 |
(State or other jurisdiction
of incorporation or organization) | (I.R.S. Employer
Identification No.) |
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One Crescent Drive, Suite 203, Navy Yard Corporate Center, Philadelphia PA | 19112 |
(Address of Principal Executive Offices) | (Zip Code) |
RESOURCE AMERICA, INC. INVESTMENT SAVINGS PLAN
(Full title of the plan)
Michael S. Yecies, Esquire
Resource America, Inc.
One Commerce Square
2005 Market St., 15th Floor
Philadelphia, PA 19103
____________________________
(Name and address of agent for service)
(215) 546-5005
(Telephone number, including area code, of agent for service)
Copy to:
Mark E. Rosenstein, Esquire
Ledgewood, P.C.
1900 Market Street – Suite 750
Philadelphia, PA 19103
(215) 731-9450
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE REGISTERED | AMOUNT TO BE REGISTERED(1) | PROPOSED MAXIMUM OFFERING PRICE PER SHARE(2) | PROPOSED MAXIMUM AGGREGATE OFFERING PRICE | AMOUNT OF REGISTRATION FEE |
Common Stock, par value $.01 per share | 300,000 | $9.485 | $2,845,500 | $388.13 |
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(1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional shares as may hereafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or certain other capital adjustments. |
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(2) | Calculated pursuant to Rule 457(h) under the Securities Act based upon the average of the high and low prices of the Registrant’s common stock on May 8, 2013 as quoted on the Nasdaq National Market. |
In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Resource America, Inc. Investment Savings Plan described herein.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
A prospectus setting forth the information required by Part I of Form S-8 will be sent or given to participants in the Resource America, Inc. Investment Savings Plan (the “Plan”) as specified by Rule 428(b)(1) under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement and other documents required to be delivered to participants pursuant to Rule 428(b) are available without charge by contacting: Michael Yecies, Chief Legal Officer, Resource America, Inc., One Commerce Square, 2005 Market St., 15th Floor, Philadelphia, PA 19103, telephone number 215-546-5005.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the SEC pursuant to the Securities Exchange Act of 1934 are incorporated by reference into this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2012.
(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended December 31, 2012 and March 31, 2013.
(c) The Registrant’s Current Reports on Form 8-K filed with the SEC on October 31, 2012, November 19, 2012, December 18, 2012 and March 15, 2013.
(d) The Plan’s Annual Report on Form 11-K for the year ended December 31, 2011.
(e) The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the SEC on January 28, 2013.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
Item 6. Indemnification of Directors and Officers.
The registrant is incorporated under the laws of the State of Delaware. Section 145 of the General Corporation Law of the State of Delaware provides that a Delaware corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reasons of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer, director, employee or agent is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
The Certificate of Incorporation of the registrant provides that the registrant shall have power to indemnify its directors to the full extent permitted by the law of the State of Delaware.
In addition, the registrant's Bylaws require the registrant to indemnify any person 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, officer, employee or agent of the registrant, or is or was serving at the request of the registrant as a director, officer, employee or agent of another corporation, partnership, joint venture trust or other enterprise, including an employee benefit plan, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement (if such settlement is approved in advance by the registrant, which approval shall not be unreasonably withheld) actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interest of the registrant, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
The registrant's Bylaws also provide that the registrant shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the registrant to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the registrant, or is or was serving at the request of the registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including an employee benefit plan, against expenses (including attorneys' fees) and amounts paid in settlement (if such settlement is approved in advance by the registrant, which approval shall not be unreasonably withheld) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in manner the person reasonably believed to be in or not opposed to the best interests of the registrant, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the registrant unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
In addition, to the extent that a director, officer, employee or agent of the registrant has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the preceding two paragraphs, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection therewith. Expenses incurred in defending a civil or criminal action, suit or proceeding by an individual who may be entitled to indemnification shall be paid by the registrant in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that the individual is not entitled to be indemnified by the registrant.
Item 8. Exhibits
The following exhibits are furnished as part of this Registration Statement:
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EXHIBIT |
DOCUMENT |
4.1 | Resource America, Inc. Investment Savings Plan * |
5.1 | Opinion of Ledgewood, P.C. |
23.1 | Consent of Grant Thornton LLP |
23.2 | Consent of Ledgewood, P.C. (included as part of Exhibit 5.1) |
24.1 | Power of Attorney (included as part of signature page) |
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* | Previously filed as an exhibit to the Registrant's Form S-8 filed on April 13, 2009. |
The registrant hereby undertakes to submit the Plan and any amendments thereto to the Internal Revenue Service in a timely manner and will make all changes required by the Internal Revenue Service in order to qualify the Plan.
Item 9. Undertakings.
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 of 1933;
(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 the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (1)(i) and (1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(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.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 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.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 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 any action, suit or proceeding) is asserted by such director, officer 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 Act and will be governed by the final adjudication of such issue.
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 May 13, 2013.
RESOURCE AMERICA, INC.
By: /s/ Jonathan Z. Cohen
Jonathan Z. Cohen
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jonathan Z. Cohen, Thomas C. Elliott and Michael S. Yecies, or any of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her 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 all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or of his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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.
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/s/ Jonathan Z. Cohen | Date: May 13, 2013 |
JONATHAN Z. COHEN, President, Chief Executive Officer and Director (principal executive officer) | |
/s/ Arthur J. Miller | Date: May 13, 2013 |
ARTHUR J. MILLER, Vice President and Chief Accounting Officer (principal accounting officer) | |
/s/ Thomas C. Elliott | Date: May 13, 2013 |
THOMAS C. ELLIOTT, Senior Vice President and Chief Financial Officer (principal financial officer) | |
/s/ Edward E. Cohen | Date: May 13, 2013 |
EDWARD E. COHEN, Chairman of the Board | |
/s/ Carlos C. Campbell | Date: May 13, 2013 |
CARLOS C. CAMPBELL, Director | |
/s/ Robert L. Lerner | Date: May 13, 2013 |
ROBERT L. LERNER, Director | |
/s/ Andrew M. Lubin | Date: May 13, 2013 |
ANDREW M. LUBIN, Director | |
/s/ Donald W. Delson | Date: May 13, 2013 |
DONALD W. DELSON, Director | |
/s/ Michael J. Bradley | Date: May 13, 2013 |
MICHAEL J. BRADLEY, Director | |
/s/ Hersh Kozlov | Date: May 13, 2013 |
HERSH KOZLOV, Director | |
/s/ John S. White | Date: May 13, 2013 |
JOHN S. WHITE, Director | |
The Plan. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have 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 May 13, 2013.
RESOURCE AMERICA, INC. INVESTMENT SAVINGS PLAN
By: Resource America, Inc.
By: /s/ Jonathan Z. Cohen
Jonathan Z. Cohen
President and Chief Executive Officer