EMPLOYMENT AGREEMENT Amended and Restated as of December 29, 2008
EXHIBIT
10.5
Amended
and Restated as of December 29, 2008
This Amended and Restated
Employment Agreement (“Agreement”)
is dated as of December 29, 2008 by and between RESOURCE AMERICA, INC., a
Delaware corporation having its principal place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“RAI”)
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”).
BACKGROUND
WHEREAS,
▇▇▇▇▇▇▇ and RAI are parties to an Employment Agreement dated November 17, 2006
(“Existing Agreement”); and
WHEREAS,
RAI and ▇▇▇▇▇▇▇ desire to amend the Existing Agreement to comply with section
409A of the
Internal Revenue Code of 1986, as amended (“Code”)
and to make other appropriate changes to comply with applicable
law.
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual promises and covenants set forth
herein, and intending to be legally bound hereby, RAI and ▇▇▇▇▇▇▇ hereby agree
that the Existing Agreement is amended and restated to read as
follows:
1. Employment. During
the term of this Agreement, ▇▇▇▇▇▇▇ shall be employed as the Senior Vice
President-Finance and Operations of RAI.
2. Duties. ▇▇▇▇▇▇▇
shall report to, and accept direction from, the Chief Financial Officer of RAI
and from the Board of Directors of RAI (the “Board”). ▇▇▇▇▇▇▇
shall serve RAI diligently, competently and to the best of his
abilities. ▇▇▇▇▇▇▇ shall devote substantially all of his time and
attention to the business of RAI and its affiliates, and shall not undertake any
other duties which conflict with these responsibilities. ▇▇▇▇▇▇▇
shall render such services as may reasonably be required of him to accomplish
the business purposes of RAI, and such duties as may be assigned to him from
time to time and which are appropriate for his position at
RAI.
3. Term. ▇▇▇▇▇▇▇’▇
employment hereunder shall commence on the date hereof and continue in full
force and effect for a period of one (1)
year, unless sooner terminated in accordance with the provisions hereof (the
“Term”). Such
Term shall automatically extend so that on any day that this Agreement is in
effect, it shall have a then current term of one (1)
year. Such automatic extensions shall cease upon RAI’s written notice
to ▇▇▇▇▇▇▇ of its election to terminate this Agreement at the end of the one (1)
year period then in effect.
4. Compensation.
(a) Base
Compensation. During
the period of employment, RAI shall pay to ▇▇▇▇▇▇▇ "Base Compensation" to be
established by the Board, which was initially as of the
date of
the Existing Agreement in an amount equal to Two Hundred Thousand Dollars
($200,000) per annum base compensation (the “Initial
Level”). The Base Compensation will be payable in accordance
with the general payroll practices by which RAI pays its
executive officers, and the historical practice of RAI’s compensation of
▇▇▇▇▇▇▇. It is understood that RAI, through the compensation
committee of the Board, will review ▇▇▇▇▇▇▇’▇ performance on an annual basis and
increase or decrease (but in no event below the Initial Level) such Base
Compensation, based upon ▇▇▇▇▇▇▇’▇ performance.
(b) Incentive
Compensation. During the Term, ▇▇▇▇▇▇▇ may receive incentive
compensation in the form of cash bonus payments, stock option grants, restricted
stock grants and other forms of incentive compensation, based upon ▇▇▇▇▇▇▇’▇
performance.
5. Benefits.
▇▇▇▇▇▇▇ shall
be entitled to receive the following benefits from RAI independent of any other
benefits which ▇▇▇▇▇▇▇ may receive from RAI or
otherwise:
(a) Participation
in Plans. ▇▇▇▇▇▇▇ shall be entitled to participate in all
applicable incentive, savings, and retirement plans, practices, policies, and
programs of RAI and in any group life, hospitalization or disability insurance
plans, and health programs, in each case to the extent ▇▇▇▇▇▇▇ is eligible under
the terms of such plans or programs.
(b) Disability. ▇▇▇▇▇▇▇
shall be eligible for any short and long term disability and any life insurance
plans or programs that are available to other Senior Vice Presidents of RAI in
each case to the extent ▇▇▇▇▇▇▇ is eligible under the terms of such plans or
programs.
(c) Reimbursement
of Expenses. RAI shall reimburse ▇▇▇▇▇▇▇ for all reasonable
expenses incurred by ▇▇▇▇▇▇▇ in the performance of his duties, including without
limitation expenses incurred during business-related travel. ▇▇▇▇▇▇▇
shall present to RAI, from time to time, an itemized account of such expenses in
such form as may be required by RAI.
(d) Personal
Time Off. ▇▇▇▇▇▇▇ shall be entitled to a number of days of
personal time off work during each calendar year which shall be no less than the
amount set forth in RAI’s company policies. This includes days used
for vacation, illness or other personal matters but is exclusive of such office
holidays as may be designated by RAI.
6. Termination.
Anything herein contained to the
contrary notwithstanding, ▇▇▇▇▇▇▇’▇ employment hereunder shall terminate as
follows:
(a) Death. ▇▇▇▇▇▇▇’▇
employment shall terminate automatically upon the death of
▇▇▇▇▇▇▇.
(b) Termination
by RAI, for Cause. RAI may
terminate this Agreement for Cause. “Cause”
shall encompass the following: (i) ▇▇▇▇▇▇▇ has committed any act of fraud;
(ii)
2
illegal
conduct or gross misconduct by ▇▇▇▇▇▇▇, in either case that is willful and
results in material and demonstrable damage to the business or reputation of RAI
or any of its affiliates; (iii) ▇▇▇▇▇▇▇ is charged with a felony; (iv) the
continued failure of ▇▇▇▇▇▇▇ substantially to perform ▇▇▇▇▇▇▇’▇ duties under
this Agreement (other than as a result of physical or mental illness or injury),
after RAI delivers to ▇▇▇▇▇▇▇ a written demand for substantial performance that
specifically identifies, with reasonable opportunity to cure, the manner in
which RAI believes that ▇▇▇▇▇▇▇ has not substantially performed his duties; or
(v) ▇▇▇▇▇▇▇ has failed to follow reasonable written directions of RAI which are
consistent with his duties hereunder and not in violation of applicable law,
provided ▇▇▇▇▇▇▇ shall have ten business days after written notice to cure such
failure.
(c) Termination
by RAI without Cause. RAI may terminate this Agreement without Cause upon
thirty (30) days prior written notice to ▇▇▇▇▇▇▇.
(d) Disability. RAI
may terminate this Agreement if ▇▇▇▇▇▇▇ becomes disabled by reason of
physical or mental disability for more than one hundred eighty (180) days in the
aggregate or a period of ninety (90) consecutive days during any 365-day period
and the Board determines, in good faith and in writing, that ▇▇▇▇▇▇▇, by reason
of such physical or mental disability, is rendered unable to perform his duties
and services hereunder (a “Disability”). A
termination of ▇▇▇▇▇▇▇’▇ employment by RAI for Disability shall be communicated
to ▇▇▇▇▇▇▇ by written notice, and shall be effective on the thirtieth (30th) day
after receipt of such notice by ▇▇▇▇▇▇▇ (the “Disability
Effective Date”), unless ▇▇▇▇▇▇▇ returns to full-time performance of his
duties before the Disability Effective Date.
(e) Termination
by ▇▇▇▇▇▇▇ for Good Reason. ▇▇▇▇▇▇▇ may terminate his
employment for Good Reason (as defined below) upon thirty (30) days’ prior
written notice to RAI, which notice shall set forth the grounds for such
termination and the
specific provision(s) of this Agreement on which ▇▇▇▇▇▇▇
relies. The notice must be provided within two (2) months
after the event giving rise to the termination for Good Reason
occurs. RAI shall have a period of thirty (30) days during which it
may cure any condition reasonably susceptible of cure. If RAI does
not correct the grounds for termination during the thirty (30) day period
following the notice of termination, ▇▇▇▇▇▇▇’▇ termination of employment for
Good Reason must become effective within thirty (30) days after the end of the
cure period, in order for such termination to be treated as a termination for
Good Reason under this Agreement. For purposes of this paragraph (e) “Good
Reason” shall
mean: (i) any
action by RAI that results in a material diminution in ▇▇▇▇▇▇▇’▇ position,
authority, duties, or responsibilities, other than an isolated, insubstantial,
and inadvertent action that is not taken in bad faith and is remedied by RAI
promptly after receipt of notice thereof from ▇▇▇▇▇▇▇; (ii) any purported
termination of ▇▇▇▇▇▇▇’▇ employment by RAI for a reason or in a manner not
expressly permitted by this Agreement; (iii) any failure by RAI to comply
with Section 11(c) of this Agreement; or (iv) any other
substantial breach of this Agreement by RAI that either is not taken in good
faith or is not remedied by RAI promptly after receipt of notice thereof from
▇▇▇▇▇▇▇.
(f) Change
of Control. In
the event of a Change of Control (as defined below), ▇▇▇▇▇▇▇ may terminate his
employment by providing such written notice to RAI for a period of time
commencing on the date such Change of Control occurs and ending on the date six
(6) months thereafter.
3
(g) Termination
by ▇▇▇▇▇▇▇ Without Cause. ▇▇▇▇▇▇▇
may terminate this Agreement for any reason other than those set forth in
Section 6(e) (other than by such ▇▇▇▇▇▇▇’▇ death or Disability) upon one
hundred eight (180) days prior written notice to RAI.
(h) The
“Date
of Termination” means the date of ▇▇▇▇▇▇▇’▇ death, the Disability
Effective Date, the date on which the termination of ▇▇▇▇▇▇▇’▇ employment by RAI
for Cause or without Cause or by ▇▇▇▇▇▇▇ for Good Reason is effective, or the
date on which ▇▇▇▇▇▇▇ gives RAI notice of a termination of employment without
Good Reason, as the case may be;
(i) A
“Change
in Control” means the occurrence of any of the following
events:
(1) Consummation
of a merger, consolidation, share exchange, division or other reorganization or
transaction of RAI (a “Fundamental Transaction”) with any other corporation,
other than a Fundamental Transaction which would result in the voting securities
of RAI outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least sixty percent (60%) of the combined voting power
immediately after such Fundamental Transaction of (i) RAI’s outstanding
securities, (ii) the surviving entity’s outstanding securities, or (iii) in the
case of a division, the outstanding securities of each entity resulting from the
division;
(2) Consummation
of a plan of complete, liquidation or winding-up of RAI or an agreement for the
sale or disposition (in one transaction or a series of transactions) of all or
substantially all of RAI’s assets;
(3) During
any period of twenty-four consecutive months, less than one-third of the
individuals who at the beginning of such period constituted the Board (including
for this purpose any new director whose election or nomination for election by
RAI’s shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors at the beginning of such
period) are on the Board at the end of such
period.
(4)
Neither
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ nor ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ are on the Board; or
(5) ▇▇▇▇▇▇▇▇
▇▇▇▇▇ is no longer Chief Executive Officer of RAI.
7. Effect
of Termination.
(a) Death. If
▇▇▇▇▇▇▇’▇ employment is terminated by reason of ▇▇▇▇▇▇▇’▇ death during the Term,
a death benefit shall be paid to ▇▇▇▇▇▇▇’▇ designated beneficiaries (or, if
there is no such beneficiary, to ▇▇▇▇▇▇▇’▇ estate or legal representative), in
an amount equal to the sum of the following amounts: (1) any portion of
▇▇▇▇▇▇▇’▇ Base Compensation through the Date of Termination that has been earned
but not yet been paid; (2) any accrued but unpaid vacation pay through the Date
of Termination; (3) an amount equal to one (1) year’s Base Compensation as of
the Date of Termination; and (4) an amount equal to the value of all
compensation (excluding
4
stock option grants)
received by ▇▇▇▇▇▇▇ pursuant to Section 4(b) during the prior year ending on the
Date of Termination. In the event of termination under this Section
7(a), all other benefits, payments or compensation to be provided to ▇▇▇▇▇▇▇
hereunder shall terminate and ▇▇▇▇▇▇▇’▇ rights in any stock option or incentive
plans shall be governed solely by the terms of the applicable plan and grant.
The
amount to be paid under this Section shall be paid as described in Section
7(f).
(b) Disability. Upon
the termination of ▇▇▇▇▇▇▇’▇ employment pursuant to Section 6(d) hereof due to
▇▇▇▇▇▇▇’▇ Disability, ▇▇▇▇▇▇▇ shall be entitled to receive compensation
equal to his Base Compensation and any incentive compensation (excluding
stock option grants) pursuant to Section 4(b) that ▇▇▇▇▇▇▇ would otherwise have
earned through the expiration of the Term, as provided under Section
3. The
amount to be paid under this Section shall be paid as described in Section 7(f);
provided, however that if ▇▇▇▇▇▇▇ is terminated by reason of Disability,
▇▇▇▇▇▇▇ shall assign to RAI any benefits received on account of RAI provided
disability insurance for the period for which he has received payments pursuant
to this Section 7(b).
(c) By
RAI for Cause; By ▇▇▇▇▇▇▇ Other than for Good Reason. If
▇▇▇▇▇▇▇’▇ employment is terminated by RAI for Cause during the Term, RAI shall
pay ▇▇▇▇▇▇▇ his Base Compensation through the Date of Termination to the extent
earned but not yet paid. If ▇▇▇▇▇▇▇ voluntarily terminates employment
during the Term, other than for Good Reason, RAI shall pay ▇▇▇▇▇▇▇ his Base
Compensation through the Date of Termination to the extent earned but not yet
paid. In the event of termination under this Section 7(c), all other
benefits, payments or compensation to be provided to ▇▇▇▇▇▇▇ hereunder shall
terminate and the rights of ▇▇▇▇▇▇▇ in any stock option or incentive plans shall
be governed solely by the terms of the applicable plan and
grant.
(d) By
RAI Other than for Cause, Death or Disability; by ▇▇▇▇▇▇▇ for Good
Reason. If, during the Term and before a Change of Control,
RAI terminates ▇▇▇▇▇▇▇’▇ employment, other than for Cause, Death or Disability
(which shall include termination of this agreement at the end of its term due to
RAI giving the notice described in the last sentence of paragraph 3 hereof), or
▇▇▇▇▇▇▇ terminates employment for Good Reason, RAI shall pay to ▇▇▇▇▇▇▇ an amount
equal to the Base Compensation as set forth in Section 4(a) that ▇▇▇▇▇▇▇ would
have earned if he had remained employed by RAI pursuant to this Agreement for a
period of one (1) year following his Date of Termination. The
payments and benefits provided pursuant to this Section 7(d) are intended as
liquidated damages for a termination of ▇▇▇▇▇▇▇’▇ employment by RAI other than
for Cause or for the actions of RAI leading to a termination of ▇▇▇▇▇▇▇’▇
employment by ▇▇▇▇▇▇▇ for Good Reason, and shall be the sole and exclusive
remedy therefor. The
amount to be paid under this Section shall be paid as described in Section 7(f).
In addition, (i) Elliot shall receive the benefits set forth in 7(e)(ii)
and (ii) any restricted stock of RAI or its affiliates outstanding on the
Date of Termination shall be fully vested as of the Date of Termination and all
options outstanding on the Date of Termination shall be fully vested and
exercisable in accordance with the terms of the applicable plan and
grant.
(e) Following
a Change of Control. If, during the Term, ▇▇▇▇▇▇▇ terminates
his employment following a Change of Control as provided in Section 6(f), or
▇▇▇▇▇▇▇’▇ employment is terminated by RAI or RAI’s successor following a Change
of Control then
RAI
5
shall
provide to ▇▇▇▇▇▇▇ the benefits described below (the “Severance
Benefits”). All Severance Benefits shall be paid as described
in Section 7(f).
(i) Severance
Payment. In lieu of
any further compensation payments to ▇▇▇▇▇▇▇ for periods subsequent to the Date
of Termination, RAI shall pay to ▇▇▇▇▇▇▇ an amount
equal to (A) the Base Compensation as set forth in Section 4(a) that ▇▇▇▇▇▇▇
would have earned if he had remained employed by RAI pursuant to this
Agreement through the end of the Term; plus (B) any incentive
compensation as set forth in Section 4(b) that that
▇▇▇▇▇▇▇ would have earned if he had remained employed by RAI pursuant to this
Agreement through the end of the Term. The incentive
compensation paid to ▇▇▇▇▇▇▇ pursuant to the foregoing sentence shall be an
amount which is not less than the amount of incentive compensation (excluding
stock option grants) ▇▇▇▇▇▇▇ received in the year immediately prior to the Date
of Termination. In addition to the foregoing, any restricted stock of
RAI or its affiliates outstanding on the Date of Termination shall be fully
vested as of the Date of Termination and all options outstanding on the Date of
Termination shall be fully vested and exercisable in accordance with the terms
of the applicable plan and grant.
(ii) Benefits.
(A) For
the remainder of the Term (the
“Separation Period”), ▇▇▇▇▇▇▇ may elect continued health coverage under
RAI’s health plan in which ▇▇▇▇▇▇▇ participated at the Date of Termination, as
in effect from time to time, provided that ▇▇▇▇▇▇▇ shall be responsible for
paying the full monthly cost of such coverage, which shall be equal to the premium
determined
for purposes of continued coverage under section 4980B(f)(4) of the Code
(“COBRA
Premium”) in effect from time to time.
(B) RAI
shall pay ▇▇▇▇▇▇▇ an amount equal to the COBRA Premium cost of continued health
coverage under RAI’s health plan for the Separation Period, less the premium
charge that is paid by RAI employees for such coverage, as in effect on
▇▇▇▇▇▇▇’▇ Date of Termination. The cash payments under this
subsection (B) shall be increased by a tax gross up payment equal to ▇▇▇▇▇▇▇’▇
income and FICA tax imposed on the payment under this subsection
(B).
(C) RAI
shall pay ▇▇▇▇▇▇▇ an amount equal to the cost that RAI would incur for life,
disability and accident insurance coverage (as calculated below) for the
Separation Period as if ▇▇▇▇▇▇▇ had continued in employment and participated in
RAI’s plans, less the premium charge that is paid by active RAI employees for
such coverage as in effect at ▇▇▇▇▇▇▇’▇ Date of Termination. The
monthly cost of disability, life and accident insurance coverage shall be
calculated based on RAI’s monthly cost of such coverage on ▇▇▇▇▇▇▇’▇ Date of
Termination. The cash payments under this subsection (C) shall
be increased by a tax gross up payment equal to ▇▇▇▇▇▇▇’▇ income and FICA tax
imposed on the payment under this subsection (C).
The
payments and benefits provided pursuant to this Section 7(e) are intended as
liquidated damages for a termination of ▇▇▇▇▇▇▇’▇ employment, and shall be the
sole and exclusive remedy therefor.
6
f. Payment
Provisions.
(i) Except
as provided in subsection (ii) below, all amounts paid upon ▇▇▇▇▇▇▇’▇
termination of employment as described in Section 7 shall be payable in regular
payroll installments over the applicable period described in the applicable
subsections . Such installments shall commence within thirty (30)
days after the date of ▇▇▇▇▇▇▇’▇ Date of Termination, subject to ▇▇▇▇▇▇▇’▇
delivery to RAI of an effective release of all claims against RAI and its
affiliates in
the standard form provided by RAI for employee terminations (“Release”)
and ▇▇▇▇▇▇▇’▇ compliance with Section 13 below. Notwithstanding anything to the
contrary in this Agreement, if RAI is paying Severance Benefits to ▇▇▇▇▇▇▇
pursuant to Section this 7(f)(i), then COBRA Premiums paid pursuant to Section
7(e)(ii)(B) shall be paid by RAI to ▇▇▇▇▇▇▇ only for the period during which
▇▇▇▇▇▇▇ elects to participate in continued
health coverage under RAI’s health plan. Notwithstanding anything in
this subsection (f) to the contrary, no Release shall be required with respect
to death benefits under Section 7(a)
(ii) If
▇▇▇▇▇▇▇’▇ employment is terminated upon or within two (2) years after a Change
of Control that is a 409A Change of Control, all amounts paid as upon ▇▇▇▇▇▇▇’▇
termination of employment as described in Section 7 shall be payable in a single
lump sum payment instead of installments. The lump sum payment shall
be made within thirty (30) days after ▇▇▇▇▇▇▇’▇ Date of Termination, subject to
▇▇▇▇▇▇▇’▇ delivery to RAI of an effective Release and compliance with Section 13
below. For purposes of determining the amounts to be paid pursuant to
Section 7(e)(ii)(B) and Section 7(e)(ii)(C), the single lump sum payment shall
equal the total amount that would otherwise have been paid to ▇▇▇▇▇▇▇ under
Section 7(e)(ii)(B) and Section 7(e)(ii)(C) for the duration of the Separation
Period as determined as of the Date of Termination. For purposes of
this Section, a “409A
Change of Control” means a
Change of Control of RAI that meets the requirements of a change of control
under section 409A of the Code and section 1.409A-3(i)(5) of the Treasury
Regulations, and any additional guidance or regulations promulgated under
section 409A of the Code.
(iii) Notwithstanding
the foregoing, all payments that are subject to the section 409A six-month delay
shall be postponed as described in Section 13 below.
8. Confidential
Information. All confidential information or trade secrets
which ▇▇▇▇▇▇▇ may obtain during the period of employment relating to the
business of RAI and its affiliates shall not be published, disclosed, or made
accessible by him to any other person, firm, or corporation except in the
business and for the benefit of RAI and its affiliates. The
provisions of this Section 8 shall survive the termination of this Agreement,
but shall not apply to any information which is or becomes publicly available
otherwise than by any breach of this Section 8.
9. Covenant
Not to Solicit. ▇▇▇▇▇▇▇ shall not, during the Term and for a
period ending on the date one (1) year from the Date of Termination, directly or
indirectly through another person or entity (i) induce or attempt to induce
any officer or employee of RAI or its affiliates to leave the employ of RAI or
such affiliate, or in any way interfere with the relationship between RAI and
any of its affiliates and any officer or employee thereof, (ii) hire any
person who was an officer or employee of RAI or any of its affiliates within 180
days after such person ceased to be an officer or employee of RAI or any of its
affiliates or (iii) induce or
DB1/60081948.4
7
attempt
to induce any customer, supplier, vendor, licensee, issuer, originator, investor
or other business relation of RAI or any of its affiliates to cease doing
business with RAI or such affiliate or in any way interfere with the
relationship between any such customer, supplier, vendor, licensee, issuer,
originator, investor or business relation and RAI or any of its
affiliates.
10. Remedies
in Case of Breach of Certain Covenants or Termination. RAI and
▇▇▇▇▇▇▇ agree that the damages that may result to RAI from misappropriation of
confidential information or solicitation as prohibited by Sections 8 and 9 could
be estimated only by conjecture and not by any accurate standard, and,
therefore, any breach by ▇▇▇▇▇▇▇ of the provisions of such Sections, in addition
to giving rise to monetary damages, will be enjoined.
11. Assignment.
(a) This
Agreement is personal to ▇▇▇▇▇▇▇ and, without the prior written consent of RAI,
shall not be assignable by ▇▇▇▇▇▇▇. This Agreement shall inure to the
benefit of and be enforceable by ▇▇▇▇▇▇▇’▇ legal
representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon RAI and its
successors and assigns, and RAI may assign this Agreement to any company in
which RAI has an interest. ▇▇▇▇▇▇▇ acknowledges and agrees that, if
this Agreement is assigned pursuant to the previous sentence, he will also, if
requested by any affiliate of RAI perform the reasonable duties of a vice
president of finance and operations of any such
affiliate.
(c) RAI
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of RAI expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that RAI would have been required to perform
it if no such succession had taken place. As used in this Agreement,
“RAI” shall mean both RAI as defined above and any such successor that assumes
and agrees to perform this Agreement, by operation of law or
otherwise.
12. Miscellaneous.
(a) Severability. In
case any one or more of the provisions contained herein shall, for any reason,
be held to be invalid, illegal, or unenforceable in any respect such validity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision(s) had never been contained herein, provided that such
invalid, illegal or unenforceable provision(s) shall first be curtailed, limited
or eliminated only to the extent necessary to remove such invalidity, illegality
or unenforceability with respect to the applicable law as it shall then be
applied.
(b) Modification
of Agreement. This Agreement shall not be modified by any oral
agreement, either expressed or implied, and all modifications thereof shall be
in writing and signed by the parties hereto.
8
(c) Waiver. The
waiver of any right under this Agreement by any of the parties hereto shall not
be construed as a waiver of the same right at a future time or as a waiver of
any other rights under this Agreement.
(d) Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania, without
giving affect to the principles of conflicts of laws.
(e) Notices. Any
notice to be given pursuant to this Agreement shall be sufficient if in writing
and mailed by certified or registered mail, postage-prepaid, to the addresses
listed below, or to such other address as either party may notify the other of
in accordance with this
Section.
If
to RAI:
Resource America,
Inc.
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
If
to ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(f) Duplicate
Originals and Counterparts. This Agreement may be executed in
any number of duplicate originals or counterparts or facsimile counterparts,
each of such duplicate original or counterpart or facsimile counterpart shall be
deemed to be an original and all taken together shall constitute but one and the
same instrument.
13. Section
409A.
(a) Payment
Delay. Notwithstanding anything in this Agreement to the
contrary, if ▇▇▇▇▇▇▇ is a “specified employee” of a publicly traded corporation
under section 409A of the Code and if payment of any amount under this Agreement
is required to be delayed for a period of six (6) months after separation from
service pursuant to section 409A of the Code, payment of such amount shall be
delayed as required by section 409A of the Code, and the accumulated postponed
amount, with interest (if applicable), shall be paid in a lump sum payment
within ten (10) days after the end of the six-month period. If
▇▇▇▇▇▇▇ dies during the postponement period prior to the payment of postponed
amount, the amounts withheld on account of section 409A of the Code, with
interest (if applicable), shall be paid to the personal representative of
▇▇▇▇▇▇▇’▇ estate within sixty (60) days after the date of ▇▇▇▇▇▇▇’▇
death. A “specified employee” shall mean an employee who, at any time
during the twelve (12) month
9
(b) Section
409A Compliance. This Agreement is intended to comply with the
requirements of section 409A of the Code, and shall in all respects be
administered in accordance with section 409A. Notwithstanding
anything in the Agreement to the contrary, distributions may only be made under
the Agreement upon an event and in a manner permitted by section 409A of the
Code or an applicable exemption. All payments to be made upon a
termination of employment under this Agreement may only be made upon a
“separation from service” under section 409A. For purposes of section
409A of the Code, the right to a series of payments under this Agreement shall
be treated as a right to a series of separate payments. In no event
may ▇▇▇▇▇▇▇, directly or indirectly, designate the calendar year of a
payment. All reimbursements and in-kind benefits provided under this
Agreement shall be made or provided in accordance with the requirements of
section 409A of the Code, including, where applicable, the requirement that (i)
any reimbursement shall be for expenses incurred during ▇▇▇▇▇▇▇’▇ lifetime (or
during a shorter period of time specified in this Agreement), (ii) the amount of
expenses eligible for reimbursement, or in-kind benefits provided, during a
calendar year may not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other calendar year, (iii) the reimbursement of
an eligible expense will be made on or before the last day of the calendar year
following the year in which the expense is incurred, and (iv) the right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for
another benefit.
IN WITNESS WHEREOF, the
parties hereto have executed or caused to be executed this Agreement as of the
date first above written.
|
RESOURCE
AMERICA, INC.
|
|
|
By: /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
|
SVP, CLO &
Sec.
|
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
10