As filed with the Securities and Exchange Commission on August 16, 1996
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MOBILE AMERICA CORPORATION
(Exact Name of registrant as specified in its charter)
Florida 59-1218935
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
10475-110 Fortune Parkway, Jacksonville, Florida 32256
(Address of principal executive offices) (zip code)
MOBILE AMERICA CORPORATION INCENTIVE PLAN
(Full title of the Plan)
Allan J. McCorkle
President and Chief Executive Officer
Mobile America Corporation
10475-110 Fortune Parkway
Jacksonville, Florida 32266
(Name and address of agent for service)
(904) 363-6339
(Telephone number, including area code, of agent for service)
Copy to:
Jack H. Chambers
Foley & Lardner
200 Laura Street
Jacksonville, Florida 32202
(904) 359-2000
Calculation of Registration Fee
Proposed Proposed
Title of each maximum maximum
class of offering aggregate Amount of
securities to Amount to be price offering registra-
be registered registered(1) per share(2) price(2) tion fee
Common Stock 82,500 $9.62 $ 793,650.00 $273.67
$0.025 par 10,000 9.38 93,800.00 32.34
value 107,500 10.625 1,142,187.50 393.86
------- ------------ --------
200,000 $2,029,637.50 $699.88
(1) Plus an indeterminate number of shares which may be issued as a
result of anti-dilution provisions contained in the Plan.
(2) Pursuant to Rules 457(c) and 457(h) under the Securities Act of
1933, as amended, the amounts shown are based (i) on 82,500 shares subject
to outstanding options having an exercise price of $9.62 per share, 10,000
shares subject to outstanding options having an exercise price of $9.38
per share, (ii) and 107,500 shares reserved for future grants under the
plan, the registration fee for which has been calculated on the basis of
the average of the bid and asked prices of the registrant's Common Stock
as reported on the Nasdaq Over-the-Counter Market on August 13, 1996.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities
and Exchange Commission are hereby incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, including portions of the registrant's
definitive proxy statement for its 1996 annual meeting of
stockholders to the extent specifically incorporated therein;
(b) Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996 and June 30, 1996;
(c) The description of the registrant's Common Stock, par
value $0.025 per share set forth under the caption "Description
of Registrant's Securities to be Registered" in the Company's
Registration Statement on Form 8-A filed under the Securities
Exchange Act of 1934; and
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates
that all shares of Common Stock being offered hereby have been sold or
which deregisters all shares of Common Stock then remaining unsold shall
be deemed incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Jack H. Chambers, a director of the registrant, is of counsel to the
law firm of Foley & Lardner, which firm performs legal services for the
registrant from time to time.
Item 6. Indemnification of Directors and Officers.
The Florida Business Corporation Act (the "Florida Act") permits a
Florida corporation to indemnify a present or former director or officer
of the corporation (and certain other persons serving at the request of
the corporation in related capacities) for liabilities, including legal
expenses, arising by reason of service in such capacity if such person
shall have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and in any
criminal proceeding if such person had no reasonable cause to believe his
conduct was unlawful. However, in the case of actions brought by or in the
right of the corporation, no indemnification may be made with respect to
any matter as to which such director or officer shall have been adjudged
liable, except in certain limited circumstances. The registrant's
Articles of Incorporation provides that the registrant shall indemnify
officers and directors consistent with the Florida Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4A. Mobile America Corporation Incentive Plan
4B. Form of Option Agreement
5. Opinion of Foley & Lardner as to the legality of the securities
to be issued
23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit
5)
23B. Consent of Cherry, Bekaert & Holland, L.L.P.
24. Power of Attorney (included on signature page of this
registration statement)
Item 8. Undertakings
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such post-
effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the Articles of Incorporation or
Bylaws of the registrant or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by the director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jacksonville, State of Florida,
on August 14, 1996.
MOBILE AMERICA CORPORATION
By/s/ Allan J. McCorkle
Allan J. McCorkle, President and Chief
Executive Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears on the Signature Page to this registration statement constitutes
and appoints Allan J. McCorkle and Thomas J. McCorkle, and each or any of
them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities to sign any and all
amendments (including post-effective amendments to this registration
statement and any and all registration statements filed pursuant to Rule
462(b) under the Securities Act of 1933), and to file the same, with all
exhibits and other documents in connection therewith, with the Securities
and Exchange Commission, and grants unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or his or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: August 14, 1996 /s/ Allan J. McCorkle
Allan J. McCorkle, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
Date: August 14, 1996 /s/ Thomas L. Stinson
Thomas L. Stinson, Vice President,
Financial Reporting (Principal Financial
Officer)
Date: August 14, 1996 /s/ Jack H. Chambers
Jack H. Chambers, Director
Date: August 14, 1996 /s/ J. Michael Garrity
J. Michael Garrity, Director
Date: August 14, 1996 /s/ Thomas J. McCorkle
Thomas J. McCorkle, Director
Date: August 14, 1996 /s/ Thomas E. Perry
Thomas E. Perry, Director
Date: August 14, 1996 /s/ R. Lee Smith
R. Lee Smith, Director
Date: August 14, 1996 /s/ Robert Thomas, III
Robert Thomas, III, Director
<PAGE>
EXHIBIT INDEX
Item 8. Exhibits.
4A. Mobile America Corporation Incentive Plan
4B. Form of Option Agreement
5. Opinion of Foley & Lardner as to the legality of the securities
to be issued
23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit
5)
23B. Consent of Cherry, Bekaert & Holland, L.L.P.
24. Power of Attorney (included on signature page of this
registration statement)
EXHIBIT 4A
MOBILE AMERICA CORPORATION
INCENTIVE PLAN
<PAGE>
MOBILE AMERICA CORPORATION
INCENTIVE PLAN
Table of Contents
Page
Article I Purpose . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article II Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Award . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Award Agreement . . . . . . . . . . . . . . . . . . . . . 1
2.4 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.5 Committee . . . . . . . . . . . . . . . . . . . . . . . . 1
2.6 Director Grant Committee . . . . . . . . . . . . . . . . . 1
2.7 Exchange Act . . . . . . . . . . . . . . . . . . . . . . . 1
2.8 Fair Market Value . . . . . . . . . . . . . . . . . . . . 1
2.9 Incentive Stock Option . . . . . . . . . . . . . . . . . . 1
2.10 Key Employee . . . . . . . . . . . . . . . . . . . . . . . 2
2.11 Non-Employee Director . . . . . . . . . . . . . . . . . . 2
2.12 Non-Qualified Stock Option . . . . . . . . . . . . . . . . 2
2.13 Option . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.14 Participant . . . . . . . . . . . . . . . . . . . . . . . 2
2.15 Performance Award . . . . . . . . . . . . . . . . . . . . 2
2.16 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.17 Restricted Stock . . . . . . . . . . . . . . . . . . . . 2
2.18 Rule 16b-3 . . . . . . . . . . . . . . . . . . . . . . . . 2
2.19 Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.20 Stock Appreciation Rights . . . . . . . . . . . . . . . . 2
Article III Administration . . . . . . . . . . . . . . . . . . . . 2
3.1 Committee . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Director Grant Committee . . . . . . . . . . . . . . . . . 3
Article IV Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Number of Shares Available . . . . . . . . . . . . . . . . 3
4.2 Shares Subject to Terminated Awards . . . . . . . . . . . 3
4.3 Adjustments . . . . . . . . . . . . . . . . . . . . . . . 4
Article V Stock Options and Stock Appreciation Rights . . . . . . . . 4
5.1 Grant of Option . . . . . . . . . . . . . . . . . . . . . 4
5.2 Stock Appreciation Rights . . . . . . . . . . . . . . . . 5
5.3 Compliance With Code Section 162(m) . . . . . . . . . . . 5
Article VI Other Share-Based Awards . . . . . . . . . . . . . . . . 5
6.1 Grant of Other Awards . . . . . . . . . . . . . . . . . . 5
Article VII Terms Applicable to All Awards Granted Under the Plan . 5
7.1 Award Agreement . . . . . . . . . . . . . . . . . . . . . 5
7.2 Awards May Be Granted Separately or Together; No
Limitations on Other Awards . . . . . . . . . . . . . . . 5
7.3 Limitations on Transfer of Awards . . . . . . . . . . . . 6
7.4 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.5 Rights and Status of Recipients . . . . . . . . . . . . . 6
7.6 Awards Not Includable for Benefit Purposes . . . . . . . . 6
7.7 Share Certificates; Representation by Participants;
Registration Requirements . . . . . . . . . . . . . . . . 6
Article VIII Amendment and Termination . . . . . . . . . . . . . . 7
8.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . 7
8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . 7
Article IX General Provisions . . . . . . . . . . . . . . . . . . . . 7
9.1 Effective Date of the Plan . . . . . . . . . . . . . . . . 7
9.2 Unfunded Status of Plan . . . . . . . . . . . . . . . . . 7
9.3 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 7
<PAGE>
MOBILE AMERICA CORPORATION
INCENTIVE PLAN
Article I Purpose
1.1 The purpose of the Mobile America Corporation Incentive Plan
("Plan") is to assist Mobile America Corporation (the "Company"), together
with any successor thereto, and its Affiliates in attracting and retaining
highly competent individuals to serve as Key Employees and as Non-Employee
Directors who will contribute to the Company's success, and in motivating
such persons to achieve long-term objectives which will inure to the
benefit of all shareholders of the Company.
Article II Definitions
2.1 Affiliate means any entity with respect to which the Company
owns or controls, directly or indirectly, shares (or other ownership
interests) having 50 percent or more of the voting power.
2.2 Award means any award made under the Plan.
2.3 Award Agreement means a written agreement or other document
specifically setting forth the terms and conditions of an Award.
2.4 Code means the Internal Revenue Code of 1986, as amended from
time to time.
2.5 Committee means a committee of the Board of Directors of the
Company designated by such Board to administer the Plan as to Key Employee
Participants, which committee (i) shall be composed of not less than two
Non-Employee Directors who shall also qualify as outside directors, as
defined in Section 162(m) of the Code, so long as the Company shall be
subject to such provision, and (ii) shall be operated so as to permit
grants of Awards to Key Employees who are subject to Section 16 of the
Exchange Act to qualify as exempt transactions under Rule 16b-3.
2.6 Director Grant Committee means a committee of the Board of
Directors of the Company designated by such Board to administer the Plan
as to Non-Employee Director Participants, which committee (i) shall be
composed of not less than two members of the Board of Directors of the
Company who also are employees of the Company or of any Affiliate and (ii)
so long as the Company shall have a class of securities registered under
Section 12 of the Exchange Act, shall be operated so as to permit grants
of Awards to Non-Employee Directors to qualify as exempt transactions
under Rule 16b-3.
2.7 Exchange Act means the Securities Exchange Act of 1934, as
amended.
2.8 Fair Market Value means, with respect to any property
(including, without limitation, any Shares or other securities), the fair
market value of such property determined by such methods as shall be
established from time to time by the Committee.
2.9 Incentive Stock Option means an Option designated as an
incentive stock option as defined in Code Section 422.
2.10 Key Employee means any officer or other key employee of the
Company or of any Affiliate who is in a position to make a significant
contribution to the management, growth, or profitability of the business
of the Company or any Affiliate, as determined by the Committee.
2.11 Non-Employee Director means a member of the Board of Directors
of the Company who is not an employee of the Company or any Affiliate.
2.12 Non-Qualified Stock Option means an Option that is not an
Incentive Stock Option as defined in Code Section 422.
2.13 Option means any option to purchase Shares granted pursuant to
the Plan.
2.14 Participant shall mean any Key Employee (referred to as a Key
Employee Participant) or any Non-Employee Director (referred to as a Non-
Employee Director Participant) receiving an Award.
2.15 Performance Award means the right to receive a payment
(measured by (i) the Fair Market Value of a specified number of Shares at
the end of the Award period or (ii) the increase in the Fair Market Value
of a specified number of Shares during the Award period or (iii) a fixed
cash amount payable at the end of the Award period) contingent upon the
extent to which certain predetermined performance targets have been met
during an Award period.
2.16 Plan means the Mobile America Corporation Incentive Plan as set
forth herein, and as the same may be amended from time to time.
2.17 Restricted Stock means Shares subject to such terms and
conditions relating to forfeitability (whether based on performance
standards, periods of service or otherwise) and relating to restrictions
(including, without limitation, transfer restrictions), which restrictions
may lapse separately or in combination at such times, in such installments
or otherwise, as the Committee may deem appropriate with respect to Key
Employee Participants and as the Director Grant Committee may deem
appropriate with respect to Non-Employee Director Participants.
2.18 Rule 16b-3 means Rule 16b-3 as promulgated by the Securities
and Exchange Commission under Section 16 of the Exchange Act, as the same
may be amended from time to time, and any successor rule.
2.19 Shares mean the shares of common stock of the Company, $0.025
par value, and such other securities or property as may become subject to
Awards pursuant to an adjustment made under Section 4.3 of the Plan.
2.20 Stock Appreciation Rights mean Awards granted in accordance
with Article V.
Article III Administration
3.1 Committee. The Plan shall be administered as to Key Employee
Participants by the Committee. Subject to the terms of the Plan and
applicable law, the Committee shall have full power and sole authority to:
(i) designate Key Employees to be Participants; (ii) determine the type,
amount, duration, and other terms and conditions of Awards to be granted
to each Key Employee Participant (including whether, to what extent, and
under what circumstances Awards may be settled or exercised in cash,
Shares, other securities, other Awards, or other property and whether, to
what extent, and under what circumstances cash, Shares, other securities,
other Awards, other property, and other amounts payable with respect to an
Award shall be deferred either automatically or at the election of the
holder thereof or of the Committee); (iii) interpret and administer the
Plan and any instrument or agreement relating to, or Award made under, the
Plan with respect to any Key Employee Participant; (iv) waive any
conditions or other restrictions with respect to, amend, alter, suspend,
discontinue, or terminate any Award granted to a Key Employee Participant,
prospectively or retroactively, but no such action shall impair the rights
of any Key Employee Participant without his or her consent except as
provided in Section 4.3, and correct any defect, supply any omission, or
reconcile any inconsistency in any Award or Award Agreement granted to a
Key Employee Participant in the manner and to the extent it shall deem
desirable to carry the Plan into effect; (v) establish, amend, suspend, or
waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan with respect to Key
Employee Participants; and (vi) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan with respect to Key Employee Participants.
Unless otherwise expressly provided in the Plan, all determinations,
interpretations, and other decisions under or with respect to the Plan or
any Award to a Key Employee Participant shall be within the sole
discretion of the Committee, may be made at any time, and shall be final,
conclusive, and binding upon all persons. The Committee may delegate its
duties to the chief executive officer and to other senior officers of the
Company pursuant to such conditions as the Committee may establish, except
that only the Committee may select and grant Awards to Key Employee
Participants who are subject to Section 16 of the Exchange Act.
3.2 Director Grant Committee. The Plan shall be administered as to
Non-Employee Director Participants by the Director Grant Committee.
Subject to the terms of the Plan and applicable law, the Director Grant
Committee shall have full power and sole authority to: (i) designate Non-
Employee Directors to be Participants; (ii) make decisions concerning the
timing, pricing, and amount of all grants of Awards to Non-Employee
Director Participants; and (iii) otherwise take any actions under the Plan
with respect to Non-Employee Directors which the Committee is authorized
to take under the Plan with respect to Key Employees.
Article IV Shares
4.1 Number of Shares Available. Subject to Section 4.3, the
maximum number of Shares which may be issued under the Plan and as to
which Awards may be granted is 200,000 Shares.
4.2 Shares Subject to Terminated Awards. The (i) Shares covered by
any unexercised portions of terminated Options, (ii) Shares forfeited as
provided under the Plan, and (iii) Shares subject to any Awards which are
otherwise surrendered by the Participant and as to which Shares no
Participant has received any payment or other benefit of ownership with
respect thereto, may again be subject to new Awards. In the event the
purchase price of an Option is paid in whole or in part through the
delivery of Shares, the gross number of Shares issuable in connection with
the exercise of the Option shall not again be available for the grant of
Awards under the Plan. Shares used to measure the amount payable to a
Participant in respect of an earned Performance Award and Shares issued in
payment of Performance Awards which are denominated in cash amounts shall
not again be available for the grant of Awards under the Plan.
4.3 Adjustments. In the event that the Committee shall determine
that any dividend or other distribution (whether in the form of cash,
Shares, other securities, or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-
up, spin-off, combination, repurchase, or exchange of securities of the
Company, or other similar corporate transaction or event affects the
Shares such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee may, in such manner as it may deem equitable, adjust as to Key
Employee Participants any or all of (i) the number and type of Shares
subject to the Plan and which thereafter may be made the subject of
Awards, including Incentive Stock Options and Stock Appreciation Rights,
(ii) the number and type of Shares subject to outstanding Awards, and
(iii) the grant, purchase, or exercise price with respect to any Award,
or, if deemed appropriate, make provisions for a cash payment to the
holder of an outstanding Award; provided, however, in each case, that with
respect to Awards of Incentive Stock Options no such adjustment shall be
authorized to the extent that such authority would cause the Plan to
violate Section 422(b)(1) of the Code or any successor provision thereto.
The foregoing authority shall be exercised as to Non-Employee Director
Participants by the Director Grant Committee. In addition, in the event
the Company or any Affiliate shall assume outstanding employee or director
awards or the right or obligation to make future awards in connection with
the acquisition of another business or another corporation or business
entity, the Committee, or the Director Grant Committee in the case of
Awards held by Non-Employee Directors, may make such adjustments, not
inconsistent with the terms of the Plan, in the terms of Awards granted to
Participants as it shall deem appropriate in order to achieve reasonable
comparability or other equitable relationship between the assumed awards
and the Awards granted to Participants.
Article V Stock Options and Stock Appreciation Rights
5.1 Grant of Option. The Committee is hereby authorized to grant
Options to Key Employee Participants with such terms and conditions, in
either case not inconsistent with the provisions of the Plan, as the
Committee shall determine. The Director Grant Committee is hereby
authorized to grant Options to Non-Employee Director Participants with
such terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Director Grant Committee shall determine.
(a) Exercise Price. The exercise price per Share purchasable under
an Option shall be determined at the time of grant and shall be not less
than 100% of the Fair Market Value of the Share on the date of grant of
such Option.
(b) Exercisability and Method of Exercise. An Option Award may
contain such performance targets and waiting periods, and shall become
exercisable in such manner and within such period or periods and in such
installments or otherwise, as shall be determined at the time of grant.
The Committee, or the Director Grant Committee in the case of Awards to
Non-Employee Director Participants, shall also determine the method by
which, and the form (including, without limitation, cash, Shares, other
securities, other Awards, or other property, or any combination thereof,
having a Fair Market Value on the exercise date equal to the relevant
exercise price), in which payment of the Option exercise price may be made
(including payment in accordance with a cashless exercise program under
which, if so instructed by the Participant, Shares may be issued directly
to the Participant's broker or dealer upon receipt of the purchase price
in cash from the broker or dealer).
(c) Incentive Stock Options. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the
provisions of Code Section 422, or any successor provision thereto, and
any regulations promulgated thereunder.
5.2 Stock Appreciation Rights. The Committee is hereby authorized
to grant Stock Appreciation Rights to Key Employee Participants, and the
Director Grant Committee is hereby authorized to grant Stock Appreciation
Rights to Non-Employee Directors in such amounts and having such grant
price, term, methods of exercise, methods of settlement (including whether
Stock Appreciation Rights will be settled in cash, Shares, other
securities, other Awards, or other property, or any combination thereof),
and any other terms and conditions as it shall determine, including,
without limitation, restrictions on the time of exercise of the Stock
Appreciation Right to specified periods as may be necessary to satisfy the
requirements of Rule 16b-3.
5.3 Compliance With Code Section 162(m). Notwithstanding any other
provision of the Plan, the maximum number of Options and Stock
Appreciation Rights, in the aggregate, which may be awarded to any
individual Key Employee Participant under the Plan is __________ Shares
and/or Stock Appreciation Rights. The Committee at any time may in its
sole discretion limit the number of Options that can be exercised in any
taxable year of the Company, to the extent necessary to prevent the
application of Section 162(m) of the Code (or any similar or successor
provision), provided that the Committee may not postpone the earliest date
on which Options can be exercised beyond the last day of the stated term
of such Options.
Article VI Other Share-Based Awards
6.1 Grant of Other Awards. Other Awards, valued in whole or in
part by reference to, or otherwise based on, Shares, including but not
limited to Performance Awards and Restricted Stock, may be granted either
alone or in addition to or in conjunction with other Awards in such
amounts and having such terms and conditions as the Committee may
determine with respect to Key Employee Participants and as the Director
Grant Committee may determine with respect to Non-Employee Director
Participants.
Article VII Terms Applicable to All Awards Granted Under the Plan
7.1 Award Agreement. No person shall have any rights under any
Award granted under the Plan unless and until the Company and the
Participant to whom such Award shall have been granted shall have executed
and delivered an Award Agreement or received any other Award
acknowledgment authorized by the Committee or the Director Grant Committee
expressly granting the Award to such person and containing provisions
setting forth the terms of the Award. If there is any conflict between
the provisions of an Award Agreement and the terms of the Plan, the terms
of the Plan shall control.
7.2 Awards May Be Granted Separately or Together; No Limitations on
Other Awards. Awards may be granted either alone or in addition to, in
tandem with, or in substitution for any other Award or any award granted
under any other plan of the Company or any Affiliate, and the terms and
conditions of an Award need not be the same with respect to each
Participant.
7.3 Limitations on Transfer of Awards. The rights and interest of
a Participant under the Plan may not be assigned, alienated, sold, or
transferred other than by will or the laws of descent and distribution;
provided, however, that a Key Employee Participant may at the discretion
of the Committee, and a Non-Employee Director Participant may at the
discretion of the Director Grant Committee, be entitled, to designate a
beneficiary or beneficiaries to exercise his or her rights, and to receive
any property distributable, with respect to any Award upon the death of
the Key Employee Participant or the Non-Employee Director Participant, as
the case may be. During the lifetime of a Participant, only the
Participant personally, or if permissible under applicable law, such
individual's guardian or legal representative, may exercise rights under
the Plan. No Award, and no right under any such Award, may be pledged,
alienated, attached, or otherwise encumbered, and any purported pledge,
alienation, attachment, or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
7.4 Taxes. The Company shall be entitled, if the Committee (or the
Director Grant Committee in the case of an Award granted to a Non-Employee
Director) deems it necessary or desirable, to withhold (or secure payment
from the Participant in lieu of withholding) the amount of any withholding
or other tax required by law to be withheld or paid by the Company in
connection with such Participant's Award, and the Company may defer
payment or issuance of the cash or Shares upon the grant, exercise or
vesting of an Award unless indemnified to its satisfaction against any
liability for any such tax. The Committee, or the Director Grant
Committee in the case of an Award granted to a Non-Employee Director, may
prescribe in each Award Agreement one or more methods by which the
Participant will be permitted to satisfy his or her tax withholding
obligation, which methods may include, without limitation, the payment of
cash by the Participant to the Company and the withholding from the Award,
at the appropriate time, of a number of Shares sufficient, based upon the
Fair Market Value of such Shares, to satisfy such tax withholding
requirements.
7.5 Rights and Status of Recipients. No Employee, Participant or
other person shall have any right to be granted an Award. Neither the
Plan nor any action taken hereunder shall be construed as giving any
employee any right to be retained in the employ of the Company or any
Affiliate, and the grant of an Award to a Non-Employee Director shall not
confer any right on such Non-Employee Director to continue as a director
of the Company.
7.6 Awards Not Includable for Benefit Purposes. Income recognized
by a Participant pursuant to the Plan shall not be included in the
determination of benefits under any employee pension benefit plan (as such
term is defined in Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended) or group insurance or other benefit plans
applicable to the Participant which are maintained by the Company or any
Affiliate, except as may be provided under the terms of such plans or
determined by resolution of the Board of Directors of the Company.
7.7 Share Certificates; Representation by Participants;
Registration Requirements. All certificates for Shares delivered pursuant
to any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee, or the Director
Grant Committee in the case of an Award granted to a Non-Employee
Director, may deem advisable under the Plan or the rules, regulations, and
other requirements of the Securities Exchange Commission, any stock
exchange or other market upon which such Shares are then listed or traded,
and any applicable federal or state securities laws, and legends may be
put on any such certificates to make appropriate reference to such
restrictions. The Committee may require each Participant to represent to
the Company in writing that such Participant is acquiring the Shares
without a view to the distribution thereof. Each Award shall be subject
to the requirement that, if at any time (i) the listing, registration or
qualification of Shares relating to such Award on any securities exchange
or under any state or federal securities laws, or (ii) the approval of any
regulatory body is necessary or desirable as a precondition thereto, the
Award or the issuance of Shares in connection therewith may not be
consummated unless such listing, registration, qualification or approval
shall have been effected.
Article VIII Amendment and Termination
8.1 Amendment. The Board of Directors of the Company may amend,
alter, suspend, discontinue, or terminate the Plan at any time; provided,
however, that no amendment, alteration, suspension, discontinuation or
termination of the Plan shall in any manner (except as otherwise provided
in this Article VIII) adversely affect any Award, without the consent of
the Participant. It is intended that the Plan be administered in
compliance with Rule 16b-3 and Section 162(m) of the Code so long as the
Company shall have a class of equity securities registered under Section
12 of the Exchange Act. If any provision of the Plan would be in
violation of Rule 16b-3 or Section 162(m) of the Code if applied as
written, such provision shall not have effect as written and shall be
given effect so as to comply therewith. The Board of Directors of the
Company is authorized to amend the Plan and to make any modifications to
Award Agreements to comply with Rule 16b-3 and Section 162(m) of the Code,
and to make any other amendments or modifications deemed necessary or
appropriate to better accomplish the purposes of the Plan in light of any
amendments made to Rule 16b-3 and Section 162(m) of the Code.
8.2 Termination. The Directors shall have the right and the power
to terminate the Plan at any time. No Award shall be granted under the
Plan after such termination, but such termination shall not have any other
effect, and any Award outstanding at the time of such termination may be
exercised after termination at any time prior to the expiration date of
such Award to the same extent such Award would have been exercisable had
the Plan not terminated.
Article IX General Provisions
9.1 Effective Date of the Plan. The Plan shall be effective as of
the date of approval of the Plan by the shareholders of the Company.
9.2 Unfunded Status of Plan. The Plan shall be unfunded and shall
not create (or be construed to create) a trust or a separate fund or
funds. The Plan shall not establish any fiduciary relationship between
the Company and any Participant or other person. To the extent any person
holds any right by virtue of a grant under the Plan, such right shall be
no greater than the right of an unsecured general creditor of the Company.
9.3 Miscellaneous. The Plan and all determinations made and
actions taken pursuant to the Plan shall be governed by the laws of the
state of Florida and applicable federal laws. Section headings are used
in the Plan for convenience only, do not constitute a part of the Plan,
and shall not be deemed in any way to be relevant to the interpretation of
the Plan or any provision thereof. Whenever possible, each provision in
the Plan and every Award shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of the Plan
or any Award shall be held to be prohibited by or invalid under applicable
law, then (a) such provision shall be deemed amended to accomplish the
objectives of the provision as originally written to the fullest extent
permitted by law and (b) all other provisions of the Plan and every other
Award shall remain in full force and effect.
EXHIBIT 4B
MOBILE AMERICA CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of this ___ day of _______, 199__
between Mobile America Corporation, a __________________ corporation (the
"Company"), and __________________________ (Key Employee").
RECITALS
WHEREAS, the Company has adopted the Mobile America Corporation
Incentive Plan (the "Plan") which provides for the grant of stock options
to certain key executive employees of the Company;
WHEREAS, Key Employee is employed by the Company in a key
executive capacity and in such capacity contributes materially to the
continued growth and development and the future financial success of the
Company; and
WHEREAS, the Company wishes to grant an incentive stock option
to purchase shares of common stock of the Company to Key Employee on the
terms and conditions specified herein to provide a means for him to
participate in the future growth of the Company and to increase his
incentive and personal interest in the continued success and growth of the
Company. Any capitalized terms used herein but not defined herein shall
have the respective meanings given in the Plan.
NOW, THEREFORE, the parties agree as follows:
I. Stock Options.
(1) Grant. Subject to the terms and conditions of this
Agreement and the Plan, the Company grants to Key Employee incentive stock
options (within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended) to purchase _________ shares of common stock, $0.025
par value per share, of the Company.
(2) Option Price. The option price per share shall be
$_____________, which is an amount not less than 100% of the fair market
value on the date of this Agreement (the "Grant Date").
(3) Term. The term of the options shall be ten (10) years
from the Grant Date, after which period the option shall expire and not be
exercisable.
(4) Vesting. Stock options shall vest as follows: (a)
20% on the first anniversary of the Grant Date; (b) an additional 20% on
the second anniversary of the Grant Date; (c) an additional 20% on the
third anniversary of the Grant Date; (d) an additional 20% on the fourth
anniversary of the Grant Date; and (e) an additional 20% on the fifth
anniversary of the Grant Date.
If Key Employee's employment with the Corporation or any
subsidiary of the Corporation is terminated for any reason (i.e. Key
Employee is no longer an employee of the Corporation or any subsidiary of
the Corporation), all options held by Key Employee which are not vested
shall thereupon be automatically canceled.
II. Exercise.
Key Employee may, subject to the limitations of this
Agreement and the Plan, exercise all or any portion of the option by
providing written notice of exercise to the Chairman of the Board
specifying the number of Shares with respect to which the options are
being exercised accompanied by payment of the option price for such
Shares. The option price shall be paid in cash and/or Shares owned by Key
Employee, valued at their Fair Market Value on the date of exercise.
III. Termination of Employment.
(1) If the employment of Key Employee terminates by reason
of death or disability, Key Employee (or his personal representative) may
exercise the option or any portion thereof which has vested pursuant to
Section 1 hereof for a period of one year after the date of such
termination of employment and not thereafter; provided, however, that no
option or portion thereof shall be exercisable after it has expired
pursuant to Section 1 hereof. For purposes of this Agreement, the term
"disability" shall mean a total and permanent disability as determined by
the Compensation Committee in its sole discretion.
(2) If the employment of the Key Employee terminates for
any reason other than death, disability or Cause, Key Employee (or his
personal representative) may exercise the option or any portion thereof
which has vested pursuant to Section 1 hereof for a period of 30 days
after the date of such termination of employment and not thereafter;
provided, however, that no option or portion thereof shall be exercisable
after it has expired pursuant to Section 1 hereof.
(3) If the employment of the Key Employee terminates for
Cause, all options (whether vested or non-vested) shall immediately be
forfeited and become null and void. For purposes hereof, "Cause" shall
mean that the Compensation Committee shall have determined that any of the
following events has occurred: a. an act of fraud, embezzlement,
misappropriation of business or theft committed by the Key Employee in the
course of his employment or any intentional or negligent misconduct of the
Key Employee which injures the business or reputation of the Company; b.
intentional or negligent damage committed by the Key Employee to the
property of the Company; c. the Key Employee's willful failure or refusal
to perform the customary duties and responsibilities of his position with
the Company; d. the Key Employee's breach of fiduciary duty, or the making
of a false representation, to the Company; e. the Key Employee's breach of
any covenant, condition or obligation required to be performed by him
pursuant to the Plan, this Agreement or any other agreement between him
and the Company or the Key Employee's intentional or negligent violation
of any written policy of the Company; f. the Key Employee's willful
failure or refusal to act in accordance with any specific lawful
instructions of a majority of the Board of Directors of the Company; or g.
commission by the Key Employee of a felony or a crime involving moral
turpitude. Cause shall be deemed to exist as of the date any of the above
events occur even if the Compensation Committee's determination is later
and whether or not such determination is made before or after termination
of employment.
IV. Withholding. The Company shall deduct and withhold from
any cash payable to Key Employee such amount as may be required for the
purpose of satisfying the Company's obligation to withhold federal, state
or local taxes. Key Employee shall notify the Company prior to any
disposition of Shares acquired pursuant to this option if such disposition
occurs before the expiration of the requisite holding period requirements
of Section 422 of the Internal Revenue Code of 1986, as amended, or any
successor provision or code thereto.
V. Nonalienation. Key Employee shall have no rights to sell,
assign, transfer, pledge, assign or otherwise alienate, except by will or
by the laws of descent and distribution, the option under this Agreement,
and any such attempted sale, assignment, transfer, pledge or other
conveyance shall be null and void. The option shall be exercisable during
the Key Employee's lifetime only by the Key Employee (or his legal
representative).
VI. Capital Adjustments Affecting Shares. In the event of a
capital adjustment resulting from a stock dividend (other than a stock
dividend in lieu of an ordinary cash dividend), stock split,
reorganization, recapitalization, merger, consolidation, spin-off, split-
up, combination or exchange of shares or the like, the number of shares
covered by the option and the option price shall be adjusted in a manner
consistent with such capital adjustment; provided, however, that no such
adjustment shall require the Company to grant any fractional shares and
the adjustment shall be limited accordingly. The determination of the
Committee as to any adjustment shall be final.
VII. Limited Interest.
(1) The grant of the option shall not be construed as
giving Key Employee any interest other than as provided in this Agreement.
(2) Key Employee shall have no voting rights nor any other
interests as a shareholder as a result of the grant of the option, until
the option is exercised, the option price is paid, and the shares issued
thereunder.
(3) The grant of the option shall not confer on Key
Employee any right to continue in the employ of the Company nor interfere
in any way with the right of the Company to terminate the employment of
the Key Employee at any time.
(4) The grant of the option shall not affect in any way
the right or power of the Company or its or their shareholders to make or
authorize any or all adjustments, recapitalizations, reorganizations, or
other changes in the Company's capital structure or its or their business,
or any merger, consolidation or business combination of the Company, or
any issuance or modification of any term, condition, or covenant of any
bond, debenture, debt, preferred or prior preference stock ahead of or
affecting the Shares or the rights of the holders thereof, or dissolution
or liquidation of the Company, or any sale or transfer of all or any part
of its assets or business or any other corporate act or proceeding,
whether of a similar character or otherwise.
VIII. Interpretation by the Board. As a condition of the
granting of the option, Key Employee agrees, for himself and his personal
representatives, that this Agreement shall be interpreted by the Board and
that any interpretation by Board of the terms of this Agreement shall be
final.
IX. Incorporation by Reference. The terms of the Plan to the
extent not stated herein are expressly incorporated herein by reference
and in the event of any conflict between this Agreement and the Plan, the
Plan shall govern.
X. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
11. Amendment. This Agreement may not be amended, modified,
terminated or otherwise altered except by the written consent of the
parties thereto.
MOBILE AMERICA CORPORATION
By:
("Company")
("Key Employee")
FOLEY & LARDNER EXHIBIT 5
POST OFFICE BOX 240
JACKSONVILLE, FLORIDA 32201-0240
THE GREENLEAF BUILDING
200 LAURA STREET 32202-3527
TELEPHONE (904) 359-2000
FACSIMILE (904) 359-8700
August 14, 1996
Mobile America Corporation
10475-110 Fortune Parkway
Jacksonville, FL 32256
Re: Registration Statement on Form S-8 Relating to Shares of Common
Stock Issuable Pursuant to Mobile America Corporation Incentive
Plan
Ladies and Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Mobile America
Corporation (the "Company"), under the Securities Act of 1933, as amended,
for the registration of 200,000 shares of common stock par value $0.025
(the "Shares") issuable pursuant to the Mobile America Corporation
Incentive Plan (the "Plan").
We have examined and are familiar with the following:
A. Articles of Incorporation of the Company, as amended, as filed
in the Office of the Secretary of State of the State of Florida;
B. Bylaws, as amended, of the Company;
C. The proceedings of the Board of Directors and shareholders of
the Company in connection with the adoption of the Plan; and
D. Such other documents, Company records and matters of law as we
have deemed to be pertinent.
Based on the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Florida.
2. The Shares have been duly authorized and when issued in
accordance with the terms of the Plan will be duly and validly issued,
fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5 in
the Registration Statement. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules or regulations of the Securities and Exchange Commission promulgated
thereunder.
FOLEY & LARDNER
By: /s/ Linda Y. Kelso
Linda Y. Kelso
LYK:pam
EXHIBIT 23B
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 21, 1996, which appears on
page II-8 of Mobile America Corporation's Annual Report on Form 10-K for
the year ended December 31, 1995. We also consent to the incorporation by
reference of our report dated March 21, 1996 on the Financial Statement
Schedules, which appears on page II-8 of such Annual report on Form 10-K.
Cherry, Bekaert & Holland, L.L.P.
Certified Public Accountants
Orlando, Florida
August 16, 1996
