SHAREHOLDER AGREEMENT
THIS AGREEMENT is dated as of the 24th day of May, 1999, by and among
Mobile America Corporation, a Florida corporation (the "Company"), ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and R. ▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and their respective affiliates
signing below (collectively referred to herein as the "Shareholders").
Preliminary Statement
The Shareholders collectively own, or have voting power over,
approximately 48% of the Company's outstanding stock. The Company and the
Shareholders believe it to be in their respective best interest and in the best
interest of the Company to provide for continuity and harmony in the management
of the Company by providing for and specifically defining the composition of the
Board of Directors of the Company.
1. Ownership of Shares.
a. Representations and Warranties of ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ hereby
represents and warrants that ▇▇▇▇▇▇▇▇ directly or indirectly owns of record or
has the right to exercise voting power with respect to the shares of Company
stock listed on Schedule 1(a) and that ▇▇▇▇▇▇▇▇ does not own of record or have
the right to exercise or share voting power with respect to any shares of
Company common stock not shown thereon other than 50,000 shares (the "Excluded
Shares") that ▇▇▇▇▇▇▇▇ contributed to the Kissaway County Charitable Trust, of
which ▇▇▇▇▇▇▇▇ is one of four trustees and as to which ▇▇▇▇▇▇▇▇ may be
prohibited by applicable trust laws from joining in this Agreement.
b. Representations and Warranties of ▇▇▇▇▇. ▇▇▇▇▇ hereby represents
and warrants that ▇▇▇▇▇ directly or indirectly owns of record or has the right
to exercise voting power with respect to the shares of Company stock listed on
Schedule 1(b) and that ▇▇▇▇▇ does not own of record or have the right to
exercise or share voting power with respect to any shares of Company common
stock not shown thereon.
2. Voting of Shares. At the 1999 Annual Meeting of the Company's
Shareholders (the "1999 Annual Meeting") and thereafter at each annual or
special meeting of the Company's shareholders at which directors are to be
elected, until, but not including, the Annual Meeting of the Company's Share-
holders to be held in June, 2002 (the "2002 Annual Meeting"), each Shareholder
agrees to vote all of the shares of common stock of the Company then
beneficially owned by the Shareholder and all such shares as to which the
Shareholder is then entitled to exercise voting power as follows (and to use
best efforts to cause to be voted all shares other than Excluded Shares as to
which the Shareholder shares voting power as follows):
a. Agreed Director Nominees. In favor of the nomination and
election of the following individuals (the "Agreed Director Nominees") as
directors to serve a term beginning at the 1999 Annual Meeting and continuing
until their successors are elected and qualified at the 2002 Annual Meeting:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(the above 3 nominees and any additional nominee named by ▇▇▇▇▇▇▇▇ pursuant to
Section 2(c) below, together with any replacements named pursuant to this
Agreement, are referred to herein collectively as the "Family Directors");
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
R. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
(the above 4 nominees, together with any replacements named pursuant to this
Agreement, are referred to herein collectively as the "Non-Family Directors");
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇");
b. Vacancies. In the event of a vacancy on the Board of Directors
with respect to the Non-Family Directors, in favor of an individual nominated in
writing by 75% of a group comprised of the remaining Non-Family Directors and
▇▇▇▇▇▇; in the event of a vacancy on the Board of Directors with respect to the
Family Directors, in favor of an individual nominated in writing by ▇▇▇▇▇▇▇▇;
c. Expansion of Board. In the event that a new President and CEO is
hired and becomes a director, in favor of an additional nominee nominated in
writing by ▇▇▇▇▇▇▇▇, who shall also be a Family Director; and
d. Anti-Takeover Measures. Against any anti-takeover measures such
as a staggered board of directors, a stock dividend or distribution plan
intended to dilute the interest of a purchaser of the Company's stock, contracts
providing for golden parachute payments to the Non-Family Directors, limitations
on shareholder rights to act by written consent or to otherwise propose or take
corporate action (other than 30 days notice of any nominee for election as a
director), or amend or repeal Article II, Section 8 of the Bylaws, which
measures the Company hereby agrees not to adopt without the consent of the
Shareholders.
3. Chairman of the Board; Board Committees. It is contemplated that at
the 1999 annual meeting of directors, ▇▇▇▇▇▇▇▇ will be elected as Chairman
Emeritus of the Board of Directors and that ▇▇▇▇▇▇ will be elected Chairman of
the Board. It is also contemplated that ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ will be
appointed as members for three years of a new senior officer selection committee
of the Board of Directors, the purpose of which will be to interview prospective
senior officers of the Company and its subsidiaries and make hiring recommenda-
tions with respect to such candidates to the Board of Directors.
4. No Proxy Contests. During the term of this Agreement, except in
respect of the 2002 Annual Meeting, each Shareholder agrees (i) not to solicit,
initiate, encourage or participate in any solicitation of proxies or become a
participant in any election contest or take action by written consent as a
shareholder the purpose or effect of which would be to cause the election of any
person as a director of the Company, the election of whom would be inconsistent
with the provisions of this Agreement, and (ii) not to assist, advise, encourage
or act in concert with any person with respect to any such conduct.
5. Term. This Agreement shall begin on the date hereof and shall
continue until the first to occur of the following events: (i) the 2002 Annual
Meeting, which the parties agree will be held during June, 2002; (ii) the death
of ▇▇▇▇▇▇▇▇; (iii) default by the Company under its Consulting and Non-Competi-
tion Agreement (the "Consulting Agreement") or Director Indemnification Agree-
ment with ▇▇▇▇▇▇▇▇, each dated the date hereof, after receipt of written notice
thereof and a failure to cure within the later of 10 days of receipt of such
notice by the Company or 10 days after resolution of any bona fide dispute with
respect thereto; (iv) the occurrence of a Material Adverse Change; or (v) the
Company's Board fails to nominate the Family Directors and ▇▇▇▇▇▇, or his
successor selected pursuant to his Section, for election at an Annual Meeting
prior to the 2002 Annual Meeting.
For purposes of the foregoing, Material Adverse Change shall mean (i) the
Company's shareholders' equity as reflected in the Company's quarterly or annual
financial statements filed with the Securities and Exchange Commission in its
Form 10-Q or 10-K is less than such shareholders' equity at March 31, 1999 minus
(x) $6,600,000 and (y) any reserves required to be established in respect of
obligations arising under the Consulting Agreement; (ii) the Company is in
default under an Employment Agreement or Consulting and Non-Competition
Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, both of even date herewith, after receipt of
written notice thereof and a failure to cure within the later of 10 days of
receipt of such notice by the Company or 10 days after resolution of any bona
fide dispute with respect thereto; (iii) any local, state or federal regulatory
authority takes control of the Company or Fortune Insurance Company under
administrative supervision or receivership; (iv) any outstanding indebtedness of
the Company for money borrowed is accelerated or matures and is not paid,
extended or reinstated within 60 days; (v) the Company files a petition for
relief under federal bankruptcy laws or an involuntary petition is filed against
the Company and is not dismissed within 90 days; or (vi) ▇▇▇▇▇▇ resigns, is
removed, dies or otherwise ceases to serve as Chairman of the Board or as a
director of the Company and the Board fails to appoint a successor reasonably
satisfactory to ▇▇▇▇▇▇▇▇.
6. Transferees. This Agreement shall be binding upon the transferees,
direct or indirect, of any shares held by the Shareholders unless such a
transferee is an unrelated third party which purchases or otherwise acquires
such shares in a bona fide arms length transaction (an "Unrestricted
Transferee") from the Shareholder or a subsequent transferee. For purposes of
this Agreement, an "unrelated third party" means any person or entity, as the
case may be, who is neither a "member of the family" of the Shareholder nor an
"affiliate" of the Shareholder (as that term is defined in 1933 Act Rule 405 of
the Securities and Exchange Commission) nor any entity in which the Shareholder
or any member of his family owns in excess of a 5% beneficial interest or over
which the Shareholder or any member of his family may exercise control. A
"member of the family" includes any person related, directly or indirectly, by
blood, marriage, adoption, or any combination thereof, to the Shareholder in
question. A transferor transferring shares to a person who does not qualify as
an Unrestricted Transferee shall, as a condition to such transfer, require the
transferee to acknowledge in writing that such transferee agrees to all the
terms and conditions of this Agreement.
7. Notice to Transfer Agent. The Company and the Shareholders shall
jointly notify the Company's transfer agent of the existence of this Agreement.
8. Specific Performance. The Company and the Shareholders acknowledge
that, in view of the uniqueness of the arrangements contemplated by this Agree-
ment, the parties hereto would not have an adequate remedy at law for money
damages in the event that this Agreement were not performed in accordance with
its terms, and therefore the parties agree that any party hereto, including the
Company, shall be entitled to specific performance of the terms hereof in
addition to any other remedy to which the parties may be entitled at law or in
equity.
9. Further Assurances. Each Shareholder agrees, upon the request of
the Company, to execute such further documents, including proxies, as the
Company may reasonably request from time to time and to take such other actions
as may be reasonably necessary or desirable to carry out the intent of this
Agreement. The parties acknowledge that any proxies so executed and delivered
constitute proxies coupled with interest and may not be revoked during the term
of this Agreement.
10. Notices. Any notice or other communication required or permitted to
be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by nationally recognized overnight courier service or by certified
or registered mail, first-class postage prepaid and return receipt requested,
(iii) deemed to have been received on the date of delivery, and (iv) addressed
as follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
i. Notices. if to Company, to:
Mobile America Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & Lardner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ii. if to ▇▇▇▇▇▇▇▇, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
P.O. Box 53315 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq. Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
iii. if to ▇▇▇▇▇, to:
R. ▇▇▇ ▇▇▇▇▇
Suite 902
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Holland & Knight, LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Main, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11. Invalid Provision. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
12. Modification. No change or modification of this Agreement shall be
valid unless the same be in writing and signed by the party against whom
enforcement is sought.
13. Governing Laws; Binding Effect. This Agreement is governed by the
laws of the State of Florida and shall be construed in accordance therewith.
This Agreement shall be binding upon the heirs, personal representatives,
successors and assigns of the parties hereto, including any person other than an
Unrestricted Transferee receiving any Shares from a Shareholder.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the date set forth above.
MOBILE AMERICA CORPORATION
By: /s/ R. ▇▇▇ ▇▇▇▇▇
---------------------------------
Name: R. ▇▇▇ ▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ R. ▇▇▇ ▇▇▇▇▇
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R. ▇▇▇ ▇▇▇▇▇
SCHEDULE 1(a)
▇▇▇▇▇▇▇▇ Shares
Beneficial Owner No. of Shares
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 3,095,939
SCHEDULE 1(b)
▇▇▇▇▇ Shares
Beneficial Owner No. of Shares
R. ▇▇▇ ▇▇▇▇▇ 347,749