DIRECTOR INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made as of the _____ day of May 1999,
by and between:
MOBILE AMERICA CORPORATION, a Florida corporation, and the subsidiaries
executing this Agreement, with their principal offices and places of business at
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severally, (collectively, the "Corporation"), and
____________________ ("Director"), whose residence address is:
___________________________________
___________________________________
___________________________________
Background
The Corporation desires that Director continue to serve as a director
of the Corporation. Director has indicated that Director is willing to continue
to serve in that capacity, on the condition that Director be indemnified as
provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and as an inducement
to Director to continue to serve as Director, the Corporation hereby covenants
and agrees with Director, as follows:
1. Definitions. For purposes of this Agreement:
a. "Expenses" include all expenses actually and reasonably
incurred with respect to a Proceeding, including, without limitation,
fees, expenses and disbursements of attorneys, accountants, financial
consultants and other professionals, and any federal, state, local and
foreign taxes imposed on the Director as a result of the actual or
deemed receipt of any payments under this Agreement.
b. "Liabilities" includes obligations to pay a judgment, settle-
ment, penalty, fine or tax (including, without limitation, any with-
holding or employment tax and any excise tax assessed with respect to
the Corporation, any Subsidiary, any employee benefit plan or any other
enterprise as to which Director is or was Serving in an Official
Capacity), together with any obligation to pay interest thereon.
c. "Proceeding" includes any potential, threatened, asserted,
pending or completed claim, action, suit or other type of proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, including, without limitation, any arbitration
proceeding or other proceeding for the resolution of any claim or
dispute and any privately conducted negotiations, and including,
without limitation, any settlement, hearing, trial or appeal of any of
the foregoing.
d. "Serving in an Official Capacity" includes serving, regardless
of whether such service occurred before or after the date of this
Agreement, (i) as a director or officer of the Corporation or any
Subsidiary or (ii) at the request of the Corporation or any Subsidiary
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including any
employee benefit plan.
e. "Subsidiary" means any corporation or other entity directly or
indirectly controlled by the Corporation which now exists or may
hereafter be formed.
2. Statutory Indemnification. The Corporation hereby agrees to
indemnify and hold harmless Director to the fullest extent permitted or required
by the provisions of Chapter 607 of the Florida Statutes, as amended, or the
laws of the state of incorporation of any successor to the Corporation against
any Liability or Expense incurred by Director by reason of the fact that
Director is or was Serving in an Official Capacity. The Corporation agrees that
such obligation shall be to the fullest extent required or permitted by any
subsequent amendment to any of such provisions of the Florida Statutes or by any
other applicable statutory provisions permitting or requiring such
indemnification which are in effect or adopted after the date of this Agreement
(but in the case of any amendment or subsequent statutory provisions, only to
the extent that such amendment or provisions permit or require broader or more
extensive indemnification rights than prior thereto).
3. Additional Indemnification. Subject only to the exclusions set
forth in this Section 3, the Corporation further agrees to indemnify and hold
harmless Director against any and all Liabilities and Expenses incurred by
Director in connection with any Proceeding to which Director is or was a party
or is threatened to be made a party or in which Director is called to testify as
a witness or deponent by reason of the fact that Director is or was Serving in
an Official Capacity. Director shall not be entitled to any indemnification
pursuant to this Section 3 if a judgment or other final adjudication establishes
that any act or omission of Director was material to the cause of action so
adjudicated and that such act or omission constituted:
a. A criminal violation, unless Director had reasonable cause to
believe that Director's conduct was lawful or had no reasonable cause
to believe that such conduct was unlawful;
b. A transaction from which Director derived an improper personal
benefit;
c. An act or omission giving rise to liability for an unlawful
distribution under Section 607.0834, Florida Statutes, or any successor
provision; or
d. Willful misconduct or a conscious disregard for the best
interests of the Corporation (or any Subsidiary or any other enterprise
as to which Director is or was Serving in an Official Capacity).
For purposes of this Agreement, the termination of any claim, action, suit or
Proceeding, by judgement, order, settlement (whether with or without court
approval) or upon a plea of nolo contendere, or its equivalent, shall not create
a presumption that Director did not meet any particular standard of conduct or
have a particular belief or that a court has determined that indemnification is
not permitted by applicable law.
4. Advance of Expenses; Partial Indemnification. The Corporation shall
advance Expenses incurred by Director in defending any Proceeding for which
Director may be entitled to indemnification hereunder. The advances to be made
hereunder shall be paid by the Corporation to or for the benefit of Director
within ten days following delivery of a written request therefor, accompanied by
copies of invoices therefor or other reasonable documentation, by Director to
the Corporation. Director hereby agrees to repay any such advances of Expenses
made hereunder without interest thereon prior to judgment with respect to a
matter if Director is ultimately found not to be entitled to indemnification
hereunder with respect to such matter. If Director is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of any Expense or Liability but not entitled to indemnification for all
of the total amount thereof, the Corporation shall indemnify Director for such
portion thereof to which Director is entitled.
5. Separate Obligation. It is the intention of the parties that
Director be entitled to indemnification to the broadest possible extent allowed
by law. Accordingly, any ambiguity in this Agreement shall be construed in favor
of indemnification. The obligations of the Corporation under this Agreement are
separate, independent and primary obligations of the Corporation, and may be
enforced directly against the Corporation without any necessity for joining any
other enterprise as to which Director is or was Serving in an Official Capacity,
for recovering or seeking to enforce any judgment against such other enterprise,
or for otherwise seeking to recover from or out of the assets of any such other
enterprise, whether or not any such other enterprise has assets sufficient for
such recovery.
6. Notification of Defense of Claim. Promptly after receipt by
Director of the notice of the commencement of any Proceeding (including any
threat thereof) as to which Director may be entitled to indemnification here-
under, Director shall notify the Corporation in writing of the commencement
thereof. Failure to so notify the Corporation shall not relieve the Corporation
from any obligation hereunder except to the extent that it may suffer material
prejudice by reason of such failure. With respect to any such Proceeding as to
which Director notifies the Corporation of the commencement thereof:
a. The Corporation shall be entitled to participate therein at its
own expense.
b. Except as otherwise provided below, the Corporation shall
be entitled to assume the defense thereof on behalf of Director, with
counsel satisfactory to Director and the Corporation. Director shall
have the right to employ separate counsel in such Proceeding, and the
fees, expenses and disbursements of Director's own separate counsel
incurred after written notice from the Corporation to Director of its
assumption of the defense thereof and after the full assumption of such
defense by counsel engaged by the Corporation and satisfactory to
Director, shall be the expense of Director except (i) if the employment
of counsel by Director has been authorized in writing by the Corpora-
tion, or (ii) if Director shall have reasonably concluded that there
may be a conflict of interest between Director and the Corporation with
respect to the defense of such action, in which case the reasonable
fees, expenses and disbursements of Director's own separate counsel
shall be paid by the Corporation. The Corporation shall not be
entitled to assume the defense of any Proceeding brought by or on
behalf of the Corporation or as to which Director shall have made the
conclusion provided for in (ii) above.
c. The Corporation shall not be obligated to indemnify Director
under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent, which shall not be
unreasonably withheld or delayed; provided that, notwithstanding the
foregoing, Director may effect any such settlement without the Corpora-
tion's consent if the Corporation has not (i) agreed in writing to
indemnify Director with respect to such proceeding hereunder and
(ii) given Director adequate financial and other assurances that such
indemnification will be made. The Corporation shall not settle any
action or claim in any manner which would impose any penalty, limita-
tion, Liability or Expense on Director without Director's written
consent unless the Corporation has (i) agreed in writing to indemnify
Director with respect to such proceeding hereunder and (ii) given
Director adequate financial and other assurances that such indemnifica-
tion will be made.
d. If the Corporation has any applicable directors and officers or
other applicable insurance in effect at the time it receives notice
pursuant to this Section 6 of the commencement or potential or
threatened commencement of a Proceeding, the Corporation shall give
prompt notice thereof to the insurer(s) in accordance with the
procedures set forth in the related insurance policies. The Corporation
shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of Director, all amounts payable with
respect to such Proceeding under the terms of such policies.
7. Insurance. As long as Director shall continue Serving in an
Official Capacity and thereafter as long as Director shall be subject to any
possible Proceeding for which indemnification may be provided hereunder, the
Corporation shall use best efforts to maintain directors and officers liability
insurance as to all directors and officers in reasonable amounts from
established and reputable insurers. Notwithstanding the foregoing, the
Corporation shall have no obligation to maintain such insurance if the
Corporation determines in good faith that such insurance is not reasonably
available or the premium costs are unreasonably disproportionate to the coverage
provided. In the event the Corporation maintains policies of directors and
officers liability insurance, Director shall be named as an insured in such
manner as to provide Director the same rights and benefits as are accorded to
the most favorably insured of the Corporation's directors.
8. Expenses of Determination. Notwithstanding any other provision in
this Agreement to the contrary, the Corporation shall indemnify Director against
all Expenses incurred by Director in connection with any Proceeding involving
the interpretation or enforcement of the rights of Director hereunder or under
the Corporation's director and officer liability insurance policy to the extent
that the Director is successful in such Proceeding.
9. No Restriction of Other Indemnification Rights. The Corporation
shall not adopt any amendment to its Articles of Incorporation or Bylaws, the
effect of which would be to deny, diminish or encumber Director's rights to
indemnity hereunder or pursuant to the Corporation's Articles of Incorporation,
the Corporation's Bylaws, or applicable law.
10. Merger or Consolidation. In the event that the Corporation shall be
a constituent corporation in a merger, consolidation or other reorganization,
the Corporation, if it shall not be the surviving, resulting or acquiring
corporation therein, shall require, as a condition thereto, that the surviving,
resulting, or acquiring corporation agree to indemnify Director to the full
extent provided in this Agreement and to adopt and assume the Corporation's
obligations under this Agreement. Whether or not the Corporation is the
surviving, resulting or acquiring corporation in any such transaction, Director
shall also stand in the same position under this Agreement as he or she would
have with respect to the Corporation if its separate existence had continued.
11. Non-exclusivity. The provision for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed exclusive of any
other rights which Director may have under any provision of law, the
Corporation's Articles of Incorporation or Bylaws, the vote of the Corporation's
stockholders or disinterested directors, other agreements, or otherwise, whether
Serving in an Official Capacity or actions in another capacity. Director's
rights hereunder shall continue after Director has ceased Serving in an Official
Capacity.
12. No Third Party Beneficiaries. This Agreement is not intended for
the benefit of and shall not create any rights in favor of any third parties, it
being the intent of the parties that this Agreement be solely for the benefit of
Director, Director's heirs and personal representatives, in the event that
Director incurs any Liability or Expense for which Director is entitled to
indemnification hereunder.
13. Miscellaneous. This Agreement shall continue in force during the
period that Director is Serving in an Official Capacity and shall continue
thereafter so long as Director shall be subject to any possible claim or
Proceeding by reason of the fact that Director was Serving in an Official
Capacity. In the event that any provision of this Agreement is held to be void
or unenforceable, the remaining provisions shall not be affected thereby. No
amendment or modification to this Agreement shall be effective unless made in a
writing signed by the party against whom enforcement is sought.
14. Notice. 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
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Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ii. if to Director, to:
IN WITNESS WHEREOF, the Corporation and the Director have duly executed and
delivered this Director Indemnification Agreement as of the date and year
first above written.
MOBILE AMERICA CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
FORTUNE INSURANCE COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
FORTUNE LIFE INSURANCE COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
MOBILE AMERICA INSURANCE GROUP, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
____________________________________
Director
Director Indemnification Agreement Continuation of Signature Page
FORTUNE FINANCIAL CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
BIG GORILLA, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
PEGASUS INSURANCE COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
