EX. 10.13
GRANT OF NON-QUALIFIED STOCK OPTION
PURSUANT TO RESOURCE AMERICA, INC.
2005 OMNIBUS EQUITY COMPENSATION PLAN
THIS AGREEMENT, made as of this ___ day of ___________________, 2005
(the "Date of Grant") by and between __________________, ("Grantee") and
RESOURCE AMERICA, INC. (together with its successors and assigns hereinafter
referred to as, the "Company").
WHEREAS, the Company's Stock Incentive Plan (the "Plan") provides for
the granting of non-qualified stock options by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board"), or the
entire Board, to purchase, or to exercise certain rights with respect to, shares
of common stock of the Company, par value $.01 per share (the "Shares"), in
accordance with the terms and provisions thereof; and
WHEREAS, the Committee considers the Grantee to be a person who is
eligible for a grant of non-qualified stock options under the Plan, and has
determined that it would be in the best interest of the Company to grant the
non-qualified stock options on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GRANT OF OPTION.
Subject to the terms and conditions hereinafter set forth, the
Company, with the approval and at the direction of the Committee, hereby grants
to the Grantee, an option to purchase up to _______ Shares at a price of $______
per share. Such option is hereinafter referred to as the "Option" and the shares
of stock purchasable upon exercise of the Option are hereinafter sometimes
referred to as the "Option Shares."
2. INSTALLMENT EXERCISE.
Subject to such further limitations as are provided herein,
the Option shall become exercisable in four (4) installments, the Grantee having
the right hereunder to purchase from the Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion:
(i) on and after the first anniversary of the Date of
Xxxxx, up to 25% (ignoring fractional shares) of the total number of Option
Shares;
(ii) on and after the second anniversary of the Date
of Xxxxx, up to an additional 25% (ignoring fractional shares) of the total
number of Option Shares; and
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(iii) on and after the third anniversary of the Date
of Xxxxx, up to an additional 25% (ignoring fractional shares) of the total
number of Option Shares; and
(iv) on and after the fourth anniversary of the Date
of Xxxxx, the remaining Option Shares.
3. TERMINATION OF OPTION.
(a) The Option and all rights hereunder with respect thereto,
to the extent such rights shall not have been exercised, shall terminate and
become null and void after the expiration of ten years from the Date of Grant
(the "Option Term").
(b) Upon the termination of Xxxxxxx's employment by the
Company for any reason (such event being a "termination of the Grantee's
employment"), the Option, to the extent not previously exercised, shall
immediately terminate and become null and void, except in a case where the
termination of the Grantee's employment is by reason of retirement, permanent
disability or death.
Upon a termination of the Grantee's employment by
reason of retirement, disability or death, the Option may be exercised during
the following periods but only to the extent the option was outstanding and
exercisable upon such termination of the Grantee's employment: (i) the six-month
period following the date of such termination of the Grantee's employment in the
case of a permanent disability (as determined by the Committee); and (ii) the
one year period following the date of death, in the case of Xxxxxxx's death
during his employment by the Company, but not later than the end of the Option
Term.
(c) In the event of the death of Xxxxxxx, the Option may be
exercised by the Grantee's legal representative(s), but only to the extent that
the Option was outstanding and exercisable on the date of death.
(d) A transfer of the Grantee's employment between the Company
and any subsidiary of the Company, or between any subsidiaries of the Company,
shall not be deemed to be a termination of the Grantee's employment.
(e) Notwithstanding any other provisions set forth herein or
in the Plan, if the Grantee shall (i) commit any act of malfeasance or
wrongdoing affecting the Company or any subsidiary of Company, (ii) breach any
covenant not to compete, or employment contract, with Company or any subsidiary
of Company, or (iii) engage in conduct that would warrant the Grantee's
discharge for cause (excluding general dissatisfaction with the performance of
the Grantee's duties, but including any act of disloyalty or any conduct clearly
tending to bring discredit upon the Company or any subsidiary of the Company),
any unexercised portion of the Option shall immediately terminate and become
null and void.
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4. EXERCISE OF OPTION.
(a) The Grantee may exercise the Option with respect to all or
any part of the number of Option Shares granted hereunder by giving the
Secretary of the Company written notice of intent to exercise, in the form
attached hereto (the "Notice of Exercise"). The Notice of Exercise shall specify
the number of Option Shares as to which the Option is to be exercised and the
date of exercise thereof, which date shall be at least five days after the
giving of such notice unless an earlier time shall have been mutually agreed
upon.
(b) Full payment (in U.S. dollars) by the Grantee of the
option price for the Option Shares purchased shall be made on or before the
exercise date specified in the Notice of Exercise in cash, or, as and to the
extent permitted under the Plan, in whole or in part through the surrender of
previously acquired Shares at their fair market value on the exercise date.
On the exercise date specified in the Notice of
Exercise or as soon thereafter as is practicable, the Company shall cause to be
delivered to the Grantee, a certificate or certificates for the Option Shares
then being purchased (out of theretofore unissued Shares or reacquired Shares,
as the Company may elect) upon full payment for such Option Shares. The
obligation of the Company to deliver Shares shall, however, be subject to the
condition that if at any time the Committee shall determine in its discretion
that the listing upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the Option or the issuance
or purchase of Shares thereunder, the Option may not be exercised in whole or in
part unless such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Committee.
(c) If the Grantee fails to pay for any of the Option Shares
specified in the Notice of Exercise or fails to accept delivery thereof, the
Grantee's right to purchase such Option Shares may be terminated by the Company.
The date specified in the Notice of Exercise as the date of exercise shall be
deemed to be the date of exercise of the Option, provided that payment in full
for the Option Shares to be purchased upon such exercise shall have been
received by such date.
5. ADJUSTMENT OF AND CHANGES IN SHARES OF THE COMPANY.
In the event of a reorganization, recapitalization, change of
shares, stock split, spin-off, stock dividend, reclassification, subdivision or
combination of shares, merger, consolidation, rights offering, or any other
change in the corporate structure or shares of common stock of the Company, the
Committee shall make such adjustment as it deems appropriate in the number and
kind of Shares subject to the Option or in the option price; provided, however,
that no such adjustment shall give the Grantee any additional benefits under the
Option.
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6. FAIR MARKET VALUE.
As used herein, the "fair market value" of a Share shall be
the closing sale price for the Shares reported by the Nasdaq Stock Market (or
any stock exchange on which the Shares are listed) on a given day or, if there
is no sale on such day, then the closing sale price on the last previous date on
which a sale is reported.
7. NO RIGHTS AS SHAREHOLDER.
Neither the Grantee nor any personal representative shall be,
or shall have any of the rights and privileges of, a shareholder of the Company
with respect to any Shares purchasable or issuable upon the exercise of the
Option, in whole or in part, prior to the date of exercise of the Option.
8. NON-TRANSFERABILITY OF THE OPTION.
During the Grantee's lifetime, the Option shall be exercisable
only by the Grantee or any guardian or legal representative of the Grantee, and
the Option shall not be transferable except, in the case of death of the
Grantee, by will or the laws of descent and distribution, nor shall the Option
be subject to attachment, execution or other similar process. In the event of
(a) any attempt by the Grantee to alienate, assign, pledge, hypothecate or
otherwise dispose of the Option, except as provided for herein, or (b) the levy
of any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the Option by notice to the Grantee
and it shall thereupon become null and void.
9. EMPLOYMENT NOT AFFECTED.
Neither the granting of the Option nor its exercise shall be
construed as granting to the Grantee any right with respect to the continuance
of employment by the Company. Except as may otherwise be limited by a written
agreement between the Company and the Grantee, the right of the Company and any
employing subsidiary to terminate at will the Grantee's employment by the
Company or any employing subsidiary at any time (whether by dismissal,
discharge, retirement or otherwise) is specifically reserved by the Company, or
the employing subsidiary (whichever the case may be), and acknowledged by the
Grantee.
10. AMENDMENT OF OPTION.
The Option may be amended by the Board or the Committee at any
time (i) if the Board or the Committee determines, in its sole discretion, that
amendment is necessary or advisable in light of any addition to or change in the
Internal Revenue Code 1986 or in the regulations issued thereunder, or any
federal or state securities law or other law or regulation, which change occurs
after the Date of Grant and by its terms applies to the Option; or (ii) other
than in the circumstances described in clause (i), with the consent of the
Grantee.
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11. NOTICE.
Any notice to the Company provided for in this instrument
shall be addressed to it in care of its Secretary at its executive offices at
0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 or at such
other address as to which the Company shall have notified Grantee in writing and
any notice to the Grantee shall be addressed to the Grantee at the current
address shown on the payroll records of the Company. Any notice shall be deemed
to be duly given if and when properly addressed and posted by registered or
certified mail, postage prepaid.
12. INCORPORATION OF PLAN BY REFERENCE.
The Option is granted pursuant to the terms of the Plan, the
terms of which are incorporated herein by reference, and the Option shall in all
respects be interpreted in accordance with the Plan. The Committee shall
interpret and construe the Plan and this instrument, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder.
13. GOVERNING LAW.
The validity, constructions, interpretations and effect of
this instrument shall exclusively be governed by and determined in accordance
with the laws of the Commonwealth of Pennsylvania, except to the extent
preempted by federal law, which shall apply to the extent it governs.
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IN WITNESS WHEREOF, the Company has caused its duly authorized officers
to execute and attest to this Grant of Non-Qualified Stock Option, and to apply
the corporate seal hereto, and the Grantee has placed his or her signature
hereon, effective as of the date hereof.
RESOURCE AMERICA, INC.
By:_______________________________
ACCEPTED AND AGREED TO:
By:_______________________________
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NOTICE OF EXERCISE
Date:_____________, ____
The undersigned hereby irrevocably elects to exercise on
________________, ____ the Non-Qualified Stock Option granted on ______________
by Resource America, Inc. to the undersigned to the extent of purchasing
____________ Shares of Resource America, Inc. and hereby makes payment of
$____________________ in payment of the actual exercise price thereof.
_______________________
INSTRUCTIONS FOR REGISTRATION OF SHARES
_______________________
Name: ____________________________________________________________
(Please typewrite or print in block letters)
Address: _________________________________________________________
Signature: _______________________________________________________
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