-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QQzfzVfaKDI5UH0FkWz3Vlp/RtsTnwIjHKEGtOaTSms+5GDJA0odcy5IqDHrniSj EEchtaUx6TV6SaCmTTBVFQ== 0000950116-02-001966.txt : 20020822 0000950116-02-001966.hdr.sgml : 20020822 20020822092128 ACCESSION NUMBER: 0000950116-02-001966 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020822 EFFECTIVENESS DATE: 20020822 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RESOURCE AMERICA INC CENTRAL INDEX KEY: 0000083402 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 720654145 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-98505 FILM NUMBER: 02745280 BUSINESS ADDRESS: STREET 1: 1521 LOCUST ST STREET 2: 4TH FL CITY: PHILADELPHIA STATE: PA ZIP: 19102 BUSINESS PHONE: 2155465005 MAIL ADDRESS: STREET 1: 1521 LOCUST ST CITY: PHILADELPHIA STATE: PA ZIP: 19102 FORMER COMPANY: FORMER CONFORMED NAME: SMTR CORP DATE OF NAME CHANGE: 19700522 FORMER COMPANY: FORMER CONFORMED NAME: RESOURCE EXPLORATION INC DATE OF NAME CHANGE: 19890214 S-8 1 s8.txt S-8 As filed with the Securities and Exchange Commission on August 21, 2002. Registration No. 333- _____________ ================================================================================ 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 72-0654145 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 1845 Walnut Street, Philadelphia, PA 19103 (Address of Principal Executive Offices) (Zip Code) RESOURCE AMERICA, INC. 2002 KEY EMPLOYEE STOCK OPTION PLAN (Full title of the plan) Michael S. Yecies, Esquire Vice President and Secretary Resource America, Inc. 1845 Walnut Street Philadelphia, PA 19103 (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
Calculation of Registration Fee - ------------------------------------------------------------------------------------------------------------------ Title of each class of Proposed maximum Proposed maximum securities to be Amount to be offering price per aggregate offering Amount of registered registered unit(1) price(1) registration fee - ------------------------------------------------------------------------------------------------------------------ Common stock, par value $.01 per share 750,000 shares $9.08 $6,810,000 $626.52 - ------------------------------------------------------------------------------------------------------------------
- --------- (1) Estimated solely for purposes of determining the registration fee in accordance with Rules 457(h) and 457(c) under the Securities Act of 1933 on the basis of $9.08 per share, the average of the high and low prices of the registrant's common stock as reported on the Nasdaq National Market on August 16, 2002. PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS Item 1. Plan Information. The documents containing the information specified in this Item 1 of Part I are being separately provided to the optionees as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act"). Item 2. Registrant Information and Employee Plan Annual Information. The documents containing the information specified in this Item 2 of Part I are being separately provided to the optionees as specified by Rule 428(b)(1) promulgated under the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by us with the Securities and Exchange Commission are hereby incorporated by reference in this Registration Statement: (a) Our Annual Report on Form 10-K for the fiscal year ended September 30, 2001 containing our audited consolidated financial statements for the fiscal years ended September 30, 2000 and 2001. (b) All other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the filing of the Annual Report on Form 10-K listed in paragraph (a). (c) The description of our Common Stock contained in our Registration Statement on Form 8-A, including any amendment or report we may file for the purpose of updating such description. All documents subsequently filed by us with the Commission pursuant to Sections 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, are incorporated by reference in this Registration Statement and to be part of this Registration Statement from the date we file these documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Article VI of our Amended and Restated Bylaws requires us to indemnify, to the fullest extent allowed by the General Corporation Law of the State of Delaware, any person who serves or has served at any time as one of our directors or officers, and any director or officer who, at our request, serves or at any time has served as a director, officer, partner, trustee, employee or agent of any other foreign or domestic corporation or of any partnership, joint venture, trust, other enterprise or employee benefit plan, against any and all liabilities and reasonable expenses incurred in connection with any claim, action, suit, or proceeding to which such director or officer is made a party, or which may be asserted against him, because he is or was a director or an officer. This Article also provides that our directors shall not be liable to us or any of our shareholders for monetary damages caused by a breach of fiduciary duty as a director. We maintain directors' and officers' liability insurance against any actual or alleged error, misstatement, misleading statement, act, omission, neglect or breach of duty by any director or officer, excluding fraudulent or dishonest conduct, criminal acts or self-dealing. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The following exhibits are filed herewith: Exhibit No. Document - ------- -------- 4 Resource America, Inc. 2002 Key Employee Stock Option Plan 5 Opinion of Ledgewood Law Firm, P.C. as to the legality of securities being registered (including consent). 23(a) Consent of Grant Thornton LLP. 23(b) Consent of Ledgewood Law Firm, P.C. (included in Exhibit 5). 24 Power of Attorney (included as part of signature pages to this registration statement). 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; -3- (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. 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 end 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 a 20% 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 (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 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, 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. 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, 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 Securities Act and will be governed by the final adjudication of such issue. -4- 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 August 21, 2002. RESOURCE AMERICA, INC. By: /s/ Edward E. Cohen ------------------- Edward E. Cohen Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below in so signing also makes, constitutes and appoints Edward E. Cohen, Steven J. Kessler and Michael S. Yecies, 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. -5- 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: August 21, 2002 - ---------------------------------------- EDWARD E, COHEN, Chairman of the Board, President and Chief Executive Officer /s/ D Gideon Cohen Date: August 21, 2002 - ---------------------------------------- D. GIDEON COHEN, Director /s/ Scott F. Schaeffer Date: August 21, 2002 - ---------------------------------------- SCOTT F. SCHAEFFER, Director /s/ Carlos C. Campbell Date: August 21, 2002 - ---------------------------------------- CARLOS C. CAMPBELL, Director /s/ Andrew M. Lubin Date August 21, 2002 - ---------------------------------------- ANDREW M. LUBIN, Director /s/ Alan D. Schreiber Date: August 21, 2002 - ---------------------------------------- ALAN D. SCHREIBER, M.D., Director /s/ John S. White Date: August 21, 2002 - ---------------------------------------- JOHN S. WHITE, Director /s/ P. Sherrill Neff Date: August 21, 2002 - ---------------------------------------- P. SHERRILL NEFF, Director /s/ Steven J. Kessler Date: August 21, 2002 - ---------------------------------------- STEVEN J. KESSLER, Senior Vice President and Chief Financial Officer /s/ Nancy J. McGurk Date: August 21, 2002 - ---------------------------------------- NANCY J. MCGURK, Vice President-Finance and Chief Accounting Officer -6- EXHIBIT INDEX Exhibit No. Document - ----------- -------- 4 Resource America, Inc. 2002 Employee Stock Option Plan 5 Opinion of Ledgewood Law Firm, P.C. as to the legality of securities being registered (including consent). 23(a) Consent of Grant Thornton LLP 23(b) Consent of Ledgewood Law Firm, P.C. (included in Exhibit 5). 24 Power of Attorney (included as part of signature pages to this registration statement). -7- EX-4 3 ex4.txt EXHIBIT 4 EXHIBIT 4 RESOURCE AMERICA, INC. 2002 KEY EMPLOYEE STOCK OPTION PLAN This is the 2002 Key Employee Stock Option Plan of Resource America, Inc., effective as of April 29, 2002. 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 that (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 ss.424(a) of the Code. (d) Committee. Committee shall mean that subcommittee of the Board of Directors known as the Compensation Committee that is duly authorized by the Board of Directors to administer the Plan. (e) Disability. Disability shall mean "permanent and total disability" as defined in ss.22(e)(3) of the Code (f) Eligible Employee. Eligible Employee shall mean an employee of the Company within the meaning of ss.3401(c) of the Code whose initiative and effort have contributed or may in the future contribute to the Company's success. (g) Fair Market Value. Fair Market Value shall mean the closing price for the Shares reported by the NASDAQ on a given day or, if there is no sale on such day, then the closing price 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 that qualifies under ss.422 of the Code. (i) Nonqualified Stock Option. Nonqualified Stock Option shall mean any Option granted under the Plan that does not qualify as an Incentive Stock Option or that is specifically designated at the time it is granted as an Option that 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. (k) Option Agreement. Option Agreement shall mean any definitive written agreement between the Company and an Eligible Employee that complies with the Plan and that 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 that 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 2002 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 that are distributed with respect to such common stock and (iii) the stock and securities of 1 any other corporation into which such common stock is converted as a result of the Company's engaging in any transaction described in ss.424(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. 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 750,000; 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. The maximum number of Shares for which Options or Stock Appreciation Rights may be granted to any single individual under the Plan shall be 250,000. Any Shares that 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 that 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 2 (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 that 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 that 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 affect 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 that 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. (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 ss.401(k) of the Code, that all rights of the Optionee to exercise Options granted under the Plan shall be suspended. 3 (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 that 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 affect 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 that 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 that are registered under the Securities Acts. The Plan shall not obligate the Company to issue Shares that 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. 4 SECTION 9. TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS. Each Option Agreement that 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: (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 ss.422 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 ss.422 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 that 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 that 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. (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 that 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. 5 (b) No Interference with Incentive Stock Options. The Option Agreement shall contain no provisions that adversely affects the qualification of any Option that is intended to be an Incentive Stock Option under ss.422 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. (d) Option Price. The Option agreement shall, subject to Subsection 7(g), set forth the Option Price (per share) as determined by the Committee. (e) 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 that 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 as set forth in the Option Agreement. SECTION 11. TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS. Each Option Agreement that 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 that adversely affects the qualification of any Option intended to be an Incentive Stock Option under ss.422 of the Code. To that end, (i) any Stock Appreciation Right that 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 that 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 that 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 that 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 6 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. 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 such 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 affected 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 affected Optionee) that will impair the validity of any Option or Stock Appreciation Right then outstanding or that will prevent an Incentive Stock Option from continuing to qualify under ss.422 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 that is ten (10) years immediately following the effective date of the Plan. 7 EX-5 4 ex5.txt EXHIBIT 5 Exhibit 5 August 21, 2002 Resource America, Inc. 1845 Walnut Street Philadelphia, PA 19103 Gentlemen: 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 750,000 shares of RAI Common Stock, par value $.01 per share (the "Common Stock"), issued or to be issued in connection with the Resource America 2002 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. 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 have relied upon the written statements and certifications issued by the Department of State of the State of Delaware concerning the formation and subsistence of RAI. We are attorneys admitted to practice before the courts of the United States, the Commonwealth of Pennsylvania and the State of New York. The opinions set forth herein are limited to matters governed by the laws of the Untied States and the internal laws of the Commonwealth of Pennsylvania, without reference to choice of law provisions thereunder, and to matters of general corporate law of the State of Delaware relevant to this opinion. No opinion is expressed with respect to the laws of any other state or to the application of any such laws. Resource America, Inc. August 21, 2002 Page 2 Based upon and subject to the foregoing, we are of the opinion that: 1. RAI is a corporation that has been duly formed and is validly subsisting under the laws of the State of Delaware. 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, Ledgewood Law Firm, P.C. EX-23 5 ex23a.txt EXHIBIT 23(A) Exhibit 23(a) CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We have issued our report dated December 3, 2001, accompanying the consolidated financial statements and schedule of Resource America, Inc. and subsidiaries included in the Annual Report on Form 10-K for the year ended September 30, 2001, which are incorporated by reference in this Registration Statement on Form S-8 for the Resource America, Inc. 2002 Key Employee Stock Option Plan. We consent to the incorporation by reference in the Registration Statement of the aforementioned report. /s/ Grant Thornton LLP - -------------------------- Grant Thornton LLP Cleveland, Ohio August 20, 2002 -----END PRIVACY-ENHANCED MESSAGE-----