EMPLOYMENT AGREEMENT Amended and Restated as of December 29, 2008
EXHIBIT
10.4
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 0 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (“RAI”), and XXXXXXX X.
XXXXXXX (“Xxxxxxx”).
BACKGROUND
WHEREAS,
Xxxxxxx and the Company are parties to an Employment Agreement dated June 18,
2007 (“Existing Agreement”); and
WHEREAS,
RAI and Xxxxxxx desire to amend the Existing Agreement to comply with section
409A of the Internal Revenue Code of 1986, as amended (the “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
Xxxxxxx hereby agree as follows:
1. Employment. During
the term of this Agreement, Xxxxxxx shall be employed as Executive
Vice-President of RAI.
2. Duties. Xxxxxxx
shall report to, and accept direction from, the Chief Executive Officer of RAI
and from the Chairman of the Board of Directors of RAI. Xxxxxxx shall serve RAI
diligently, competently and to the best of his abilities. Xxxxxxx shall be
required to devote as much of his time and attention to the business of RAI as
is be required to fulfill his duties. It is recognized that Xxxxxxx in the past
has participated, and it is agreed that Xxxxxxx may in the future may
participate in business endeavors separate and apart from RAI, but that his
principal professional endeavor shall be his service to RAI
hereunder.
3. Term. Xxxxxxx’x
employment hereunder shall commence on June 18, 2007 and continue in full force
and effect for a period of one 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 Xxxxxxx 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 Xxxxxxx "Base Compensation" to be
established by the Board, which was initially as of the date of the Existing
Agreement in an amount equal to Three Hundred Fifty Thousand Dollars ($350,000)
per annum base compensation (the “Initial
Level”). Xxxxxxx’x Base Compensation
will be payable in accordance with the general payroll practices by which RAI
pays its executive officers. It is understood that RAI, through the compensation
committee of the Board of RAI, will review Xxxxxxx’x performance on an annual
basis and may increase or decrease (but in no event below the Initial Level) his
Base Compensation based upon his performance.
(b) Incentive
Compensation. During the Term, Xxxxxxx 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 Xxxxxxx’x
performance.
5. Benefits.
Xxxxxxx shall be entitled to
receive the following benefits from RAI independent of any other benefits which
Xxxxxxx may receive from RAI or otherwise:
(a) Participation
in Plans. Xxxxxxx 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 Xxxxxxx is eligible under
the terms of such plans or programs.
(b) Disability. Xxxxxxx
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 Xxxxxxx is eligible under the terms of such plans or
programs.
(c) Reimbursement
of Expenses. RAI shall reimburse Xxxxxxx for all reasonable
expenses incurred by Xxxxxxx in the performance of his duties, including without
limitation expenses incurred during business-related travel. Xxxxxxx 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. Xxxxxxx 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 for its senior officers. 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, Xxxxxxx’x employment hereunder
shall terminate as follows:
(a) Death. Xxxxxxx’x
employment shall terminate automatically upon the death of Xxxxxxx.
(b) Termination
by RAI, for Cause. RAI may terminate this Agreement for
Cause. “Cause”
shall encompass the following: (i) Xxxxxxx has committed any act of fraud;
(ii) illegal conduct or gross misconduct by Xxxxxxx, 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) Xxxxxxx is charged with a
felony; (iv) the continued failure of Xxxxxxx substantially to perform
Xxxxxxx’x duties under this Agreement (other than as a result of physical or
mental illness or injury), after RAI delivers to Xxxxxxx a written demand for
substantial performance that specifically identifies, with reasonable
opportunity to cure, the manner in which RAI believes that Xxxxxxx has not
substantially performed his duties; or (v) Xxxxxxx has failed to follow
reasonable written directions of RAI which are consistent with his duties
hereunder and not in violation of applicable law, provided Xxxxxxx shall have
ten business days after written notice to cure such failure.
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(c) Termination
by RAI without Cause. RAI may terminate this Agreement without Cause upon
thirty (30) days prior written notice to Xxxxxxx.
(d) Disability. RAI
may terminate this Agreement if Xxxxxxx 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 Xxxxxxx, by reason
of such physical or mental disability, is rendered unable to perform his duties
and services hereunder (a “Disability”). A
termination of Xxxxxxx’x employment by RAI for Disability shall be communicated
to Xxxxxxx by written notice, and shall be effective on the thirtieth (30th) day
after receipt of such notice by Xxxxxxx (the “Disability
Effective Date”), unless Xxxxxxx returns to full-time performance of his
duties before the Disability Effective Date.
(e) Termination
by Xxxxxxx for Good Reason. Xxxxxxx 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 Xxxxxxx
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, Xxxxxxx’x 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. “Good
Reason” shall mean: (i) any action by RAI that results in a material
diminution in Xxxxxxx’x position, authority, reporting responsibility, 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 Xxxxxxx; (ii) any purported termination of Xxxxxxx’x
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; (iv) Xxxxxxx shall receive notice from RAI of termination of this
Agreement at the end of the term then in effect pursuant to the last sentence of
paragraph 3 of this Agreement or (v) 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 Xxxxxxx.
(f) Change
of Control. In the event of a Change of Control (as defined
below), Xxxxxxx 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.
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(g) Termination
for Good Reason. Termination by Xxxxxxx for any reason other than those
set forth in Section 6(e) (other than by such Xxxxxxx’x death or disability)
upon 180 days prior written notice to RAI.
(h) The
“Date
of Termination” means the date of Xxxxxxx’x death, the Disability
Effective Date, the date on which the termination of Xxxxxxx’x employment by RAI
for Cause or without Cause or by Xxxxxxx for Good Reason is effective, or the
date on which Xxxxxxx 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
Xxxxxx X. Xxxxx nor Xxxxxxxx Xxxxx are on the Board; or
(5) Xxxxxxxx
Xxxxx is no longer Chief Executive Officer of RAI.
7. Effect
of Termination.
(a) Death. If
Xxxxxxx’x employment is terminated by reason of Xxxxxxx’x death during the Term,
a death benefit shall be paid to Xxxxxxx’x designated beneficiaries (or, if
there is no such beneficiary, to Xxxxxxx’x estate or legal representative), in
an amount equal to the sum of the following amounts: (1) any portion of
Xxxxxxx’x 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 stock option grants) received by Xxxxxxx 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 Xxxxxxx hereunder shall terminate and Xxxxxxx’x
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).
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(b) Disability. Upon
the termination of Xxxxxxx’x employment pursuant to Section 6(d) hereof due to
Xxxxxxx’x Disability, Xxxxxxx 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 Xxxxxxx would otherwise have earned
through the expiration of the Term, as provided under Section 3. The
incentive compensation paid to Xxxxxxx pursuant to the foregoing sentence shall
be an amount which is not less than the amount of incentive compensation
(excluding equity based compensation grants) Xxxxxxx received in the year
immediately prior to the Date of Termination. The amount to be paid
under this Section shall be paid as described in Section 7(f); provided, however
that if Xxxxxxx is terminated by reason of Disability, Xxxxxxx 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 Xxxxxxx Other than for Good Reason. If
Xxxxxxx’x employment is terminated by RAI for Cause during the Term, RAI shall
pay Xxxxxxx his Base Compensation through the Date of Termination to the extent
earned but not yet paid. If Xxxxxxx voluntarily terminates employment during the
Term, other than for Good Reason, RAI shall pay Xxxxxxx 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 Xxxxxxx hereunder shall terminate and the rights
of Xxxxxxx 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 Xxxxxxx for Good
Reason. If, during the Term, RAI terminates Xxxxxxx’x
employment, other than for Cause, Death or Disability, or Xxxxxxx terminates
employment for Good Reason, then 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, and RAI shall provide to Xxxxxxx the benefits
described below (the “Severance
Benefits”). All Severance Benefits shall be paid
as described in Section 7(f).
(1) Severance
Payment. In lieu of any further compensation payments to
Xxxxxxx for periods subsequent to the Date of Termination, RAI shall pay to
Xxxxxxx an amount equal to one (1) year’s Base Compensation as of the Date of
Termination plus any incentive compensation (excluding stock option grants)
pursuant to Section 4(b) payable to Xxxxxxx as if he had remained employed by
RAI pursuant to this Agreement for a period of one (1) year. The
incentive compensation paid to Xxxxxxx pursuant to the foregoing sentence shall
be an amount which is not less than the amount of incentive compensation
(excluding equity based compensation grants) Xxxxxxx received in the year
immediately prior to the Date of Termination.
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(2) Benefits.
(A) During
a period of one (1) year following Xxxxxxx’x Date of Termination (the “Separation
Period”), Xxxxxxx may elect continued health coverage under RAI’s health
plan in which Xxxxxxx participated at the Date of Termination, as in effect from
time to time, provided that Xxxxxxx 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 Xxxxxxx 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
Xxxxxxx’x Date of Termination. The cash payments under this
subsection (B) shall be increased by a tax gross up payment equal to Xxxxxxx’x
income and FICA tax imposed on the payment under this subsection
(B).
(C) RAI
shall pay Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx’x 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 Xxxxxxx’x Date of
Termination. The cash payments under this subsection (C) shall be increased by a
tax gross up payment equal to Xxxxxxx’x income and FICA tax imposed on the
payment under this subsection (C).
The
payments and benefits provided pursuant to this Section 7(d) are intended as
liquidated damages for a termination of Xxxxxxx’x employment by RAI other than
for Cause or for the actions of RAI leading to a termination of Xxxxxxx’x
employment by Xxxxxxx for Good Reason, and shall be the sole and exclusive
remedy therefore.
(e) Following
a Change of Control. If, during the Term, Xxxxxxx terminates
his employment within six (6) months following a Change of Control, or Xxxxxxx’x
employment is terminated by RAI in anticipation of a Change of Control or within
six (6) months following a Change of Control, RAI shall provide to Xxxxxxx the
Xxxxxxxxx Benefits described below. All Severance Benefits shall be
paid as described in Section 7(d).
(1) Severance
Payment. In lieu of any further compensation payments to Xxxxxxx for
periods subsequent to the Date of Termination, RAI shall pay to Xxxxxxx an
amount equal to thirty (30) month’s Base Compensation as of the Date of
Termination plus any incentive compensation (excluding stock option grants)
pursuant to Section 4(b) payable to Xxxxxxx as if he had remained employed by
RAI pursuant to this Agreement for a period of thirty (30)
months. The incentive compensation paid to Xxxxxxx pursuant to the
foregoing sentence shall be an amount which is not less than the amount of
incentive compensation
(excluding stock option grants) Xxxxxxx received in the year immediately prior
to the Date of Termination.
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(2) Benefits.
(D) During
a
period of thirty (30) months following Xxxxxxx’x Date of Termination (the
“Change of Control Separation Period”), Xxxxxxx may elect continued
health coverage under RAI’s health plan in which Xxxxxxx participated at the
Date of Termination, as in effect from time to time, provided that Xxxxxxx shall
be responsible for paying the full monthly cost of such coverage, which shall be
equal to the COBRA
Premium in effect from time to time.
(E) RAI
shall pay Xxxxxxx an amount equal to the COBRA Premium cost of continued health
coverage under RAI’s health plan for the Change of Control Separation Period d,
less the premium charge that is paid by RAI employees for such coverage, as in
effect on Xxxxxxx’x Date of Termination. The cash payments under this
subsection (B) shall be increased by a tax gross up payment equal to Xxxxxxx’x
income and FICA tax imposed on the payment under this subsection
(B).
(F) RAI
shall pay Xxxxxxx an amount equal to the cost that RAI would incur for life,
disability and accident insurance coverage (as calculated below) for the Change
of Control Separation Period as if Xxxxxxx 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 Xxxxxxx’x 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 Xxxxxxx’x Date of Termination. The cash payments under this
subsection (C) shall be increased by a tax gross up payment equal to Xxxxxxx’x
income and FICA tax imposed on the payment under this subsection
(C).
In the
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. The payments and benefits provided pursuant to
this Section 7(e) are intended as liquidated damages for a termination of
Xxxxxxx’x employment by RAI other than for Cause or for the actions of RAI
leading to a termination of Xxxxxxx’x employment by Xxxxxxx for Good Reason, and
shall be the sole and exclusive remedy therefor. Notwithstanding anything herein
to the contrary, any termination of Xxxxxxx’x employment within one hundred
twenty (120) days prior to a Change of Control (other than for Cause) will be
deemed to have been in anticipation of such Change of Control.
f. Payment
Provisions.
(1) Except
as provided in subsection (2) below, all amounts paid upon Xxxxxxx’x 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 Xxxxxxx’x Date of Termination, subject to Xxxxxxx’x 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 Xxxxxxx’x compliance with Section 13 below. Notwithstanding anything to the
contrary in this Agreement, if RAI is paying Severance Benefits to Xxxxxxx
pursuant to Section this 7(f)(1), then COBRA Premiums paid pursuant to Section
7(e)(2)(B) shall be paid by RAI to Xxxxxxx only for the period during which
Xxxxxxx 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)
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(2) If
Xxxxxxx’x 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 Xxxxxxx’x
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 Xxxxxxx’x Date of Termination, subject to
Xxxxxxx’x 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)(2)(B) and Section 7(e)(2)(C), the single lump sum payment shall
equal the total amount that would otherwise have been paid to Xxxxxxx under
Section 7(e)(2)(B) and Section 7(e)(2)(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 Xxxxxxx 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. Xxxxxxx
shall not, during the Term and for a period ending on the date one 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 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 Xxxxxxx 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
Xxxxxxx of the provisions of such Sections, in addition to giving rise to
monetary damages, will be enjoined.
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11. Assignment.
(a) This
Agreement is personal to Xxxxxxx and, without the prior written consent of RAI,
shall not be assignable by Xxxxxxx. This Agreement shall inure to the benefit of
and be enforceable by Xxxxxxx’x 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 RAT has an interest. Xxxxxxx 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 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.
(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.
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If
to RAI:
Resource
America, Inc.
0
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx
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Xxxxxxxxxxxx,
XX 00000
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Attn:
Xxxxxxx X. Xxxxxx
If
to Xxxxxxx:
Xxxxxxx
X. Xxxxxxx
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X.X.
Xxx 000
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Xxxxxxxx,
XX 00000
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(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 Xxxxxxx 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
Xxxxxxx 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
Xxxxxxx’x estate within sixty (60) days after the date of Xxxxxxx’x
death. A “specified employee” shall mean an employee who, at any time
during the twelve (12) month period ending on the identification date, is a
“specified employee” under section 409A of the Code, as determined by the
Board. The determination of “specified employees,” including the
number and identity of persons considered “specified employees” and the
identification date, shall be made by the Board in accordance with the
provisions of sections 416(i) and 409A of the Code and the regulations issued
thereunder. If a Change of Control shall have occurred and amounts
are postponed on account of section 409A, interest on the postponed amounts
shall accrue during for the postponement period at the prime rate published in
the Wall
Street Journal on Xxxxxxx’x Date of
Termination.
(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
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IN
WITNESS WHEREOF, the parties hereto have executed or caused to be executed this
Agreement as of the date first above written.
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RESOURCE
AMERICA, INC.
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By: /s/
Xxxxxxx X.
Xxxxxx
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Xxxxxxx X. Xxxxxx
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SVP, CLO &
Sec.
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/s/
Xxxxxxx X. Xxxxxxx
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| XXXXXXX X. XXXXXXX | |
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