EMPLOYMENT AGREEMENT
Exhibit 10.5
This Employment Agreement (this “Agreement”) is entered into this date, by and between FIRST
TRINITY FINANCIAL CORPORATION, an Oklahoma corporation (“Company”) and Xxxxx Xxxx (“Employee”)
Whereas, Company desires to employ employee as its President and Chief Executive Officer of the
Company and its subsidiaries; and
Whereas Employee desires to accept such position;
The parties agree to the following:
1. TERMS AND DUTIES
For valuable consideration, the receipt of which is hereby acknowledged, Employee is hereby
employed and shall work for Company and its subsidiaries as President and Chief Executive Officer
for a term commencing on November 1, 2007 and continuing for a period of thirty six months (36)
ending October 31, 2010, or the termination of this Agreement as described In Section 6 hereof,
whichever shall occur first. The employee’s duties shall be to manage Company’s interests in its
business and subsidiaries as mutually agreed and set forth in an agreed job description.
2. TIME
Employee is employed hereafter on a full time basis, and shall work for whatever period of time
each day of the week and such hours necessary to fulfill his duties hereunder. Employee shall give
his best efforts, loyalty, and attention to Company’s interests during the term of this agreement.
Employee agrees not to engage in any other insurance or financial service business during the term
of this Agreement without seeking approval of the Board of Directors so that they may be able to
determine if there is any conflict of interest or in the best interest of Company at that time.
3. COMPENSATION
(a) Base Salary. As compensation for all services rendered by the employee under this agreement,
Company will pay Employee a base salary of $15,000 per month, payable periodically, in
substantially equal amounts, but no less often than semi-monthly in accordance with company’s
payroll practices from time to time in effect. In addition to the monthly compensation above,
Employee shall receive a $750 per month vehicle allowance on the first day of each month during the
term of this agreement.
(b) Bonus. Company, at the discretion of the compensation committee and Board of Directors, may
grant additional bonuses to Employee based on performance relating to events such as, but not
limited to, acquisitions, establishment of subsidiaries or affiliates, company expansion, corporate
profits, growth of sales organization, life insurance company production growth,
premium finance company growth, and corporate cost savings. Such bonuses shall be granted on an
annual basis.
4. EMPLOYEE BENEFITS.
The Employee will be entitled to participate in all incentive, retirement, profit-sharing, life,
medical, disability and other benefit plans and programs (collectively “Benefit Plans”) as are from
time to time generally available to other executives of the Company with comparable
responsibilities, subject to the provisions of those programs. Without limiting the generality of
the foregoing, the Company will provide the Employee with basic health and medical benefits on the
terms that such benefits are provided to other executives of the Company with comparable
responsibilities. The Employee will also be entitled to holidays, sick leave and vacation in
accordance with the Company’s policies as they may change from time to time, but in no event shall
the Employee be entitled to less than two (2) weeks paid vacation in year one (1) and three (3)
weeks in years two (2) and three (3) of the agreement.
5. EXPENSES.
(a)Reimbursement for Expenses. The Company will promptly reimburse the Employee, in accordance with
the Company’s policies and practices in effect from time to time, for all expenses reasonably
incurred by the Employee in performance of the Employee’s duties under this Agreement, excluding
reimbursement for miles driven by the Employee in furtherance of the Company’s business “Business
Mileage”).
(1) The vehicle allowance of $750.00 per month is being paid in lieu of reimbursement for Business
Mileage.
(2) Business mileage does not include commuting from Employee’s residence to the Company’s
headquarters.
(3) Employee is responsible for proper substantiation and reporting of Business Mileage and/or
actual expenses.
(4) Employee acknowledges that the payment to him of a monthly vehicle allowance may result in
taxable income if the business portion of actual automobile expenses is less than the vehicle
allowance of $750.00 per month paid to employee under this subsection, or if employee does not
maintain the records required by the Internal Revenue Code and the Regulations thereunder.
Employee has been advised to consult a tax advisor to determine the taxability of payments under
this subsection, and the record keeping requirements associated with the travel and expenses
associated with such payments.
6. TERMINATION.
The Employee’s employment by the Company: (a) shall terminate upon the Employee’s death or
disability (as defined below); (b) may be terminated by the Company for any reason other than cause
or non-performance at any time; (c) may be terminated by the Company for cause (as
defined below) at any time; (d) may be terminated by the Employee, without cause at any time upon
sixty (60) days’ prior written notice delivered by the Employee to the Company; (e) may be
terminated by the employee for cause (as defined below) at any time upon sixty (60) days’ prior
written notice delivered by the Employee to the Company; and (f) may be terminated by the Company
for non-performance by the Employee at any time.
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(a) Disability. This agreement will automatically terminate if Employee shall be prevented from
performing Employee’s usual duties for a period of six (6) consecutive months, or for shorter
periods aggregating more than six (6) months in any twelve (12) month period by reason of physical
or mental disability, total or partial, (herein referred to as “disability”), Company shall
nevertheless continue to pay full salary up to and including the last day of the sixth consecutive
month of disability, or the day on which the shorter periods of disability shall have equaled a
total of six (6) months. Any salary payments to the Employee shall be reduced by the amount of any
benefits paid for the same period of time under any disability insurance program provided by the
Company.
(b) The term “cause” in the event of termination of the Employee’s employment by the Company means
(i) intentional neglect that jeopardizes the life or property of another, (ii) intentional
wrongdoing or malfeasance: or (iii) intentional violation of a business- related law. Any of the
three cause’s must have been committed by the Employee and have a material adverse effect and
demonstrably injurious to the Company and which is not or cannot be cured within sixty (60) days
after notice from the Board of Directors of the Company thereof.
(c) The term “cause” in the event of termination of the Employee’s employment by the Employee means
(i) the change in job responsibilities of the Employee resulting in the demotion of the Employee
from the position of President or CEO, which demotion is caused by something other than would be
cause for termination of the Employee’s employment by the Company for cause and other than the
non-performance of the Employee as defined later herein; or (ii) the removal of the Employee from
the Board of Directors of the Company or its subsidiaries or the failure of the Employee to be
re-elected to said Board of Directors, as the case may be.
(d) The term “non-performance by the Employee” in the event of termination of the Employee’s
employment by the Company means the determination by a super-majority (greater than 75%) of the
members of the Board of Directors of the Company, in their sole and absolute discretion, that the
Employee is not performing his duties under this Agreement after the Board of Directors of the
Company has delivered to the Employee written notice which specifically identifies the manner in
which the Board believes he is not performing his duties and which is not or cannot be cured within
sixty (60) days after such written notice is delivered to the Employee.
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7. CONSEQUENCES OF TERMINATION.
(a) CONSEQUENCES OF TERMINATION ON EMPLOYEE’S DEATH OR DISABILITY.
If the Employee’s employment is terminated prior to October 31, 2010, because of the Employee’s
death or disability, (i) subject to Section 7(g) hereof, this Agreement terminates immediately;
(ii) the Company will pay the Employee, or his legal representative or estate, as the case may be,
in full satisfaction of all of its compensation (base salary and bonus) obligations under this
Agreement, an amount equal to the sum of any base salary due to the Employee through the last day
of employment, plus any accrued bonus to which the Employee may have been entitled on the last day
of employment, but had not yet been received; and (ii) the Employee’s benefits and rights under any
Benefit Plan shall be paid, retained or forfeited in accordance with the terms of such plan;
provided, however, that Employer shall have no obligation to make any payments toward these
benefits for Employee from and after termination.
(b) CONSEQUENCES OF TERMINATION BY THE COMPANY FOR ANY REASON OTHER THAN FOR CAUSE OR FOR
NON-PERFORMANCE OF EMPLOYEE
(1) If the Employee’s employment is terminated by the Company prior to October 31, 2010, for any
reason other than for cause or non-performance of Employee, (i) subject to Section 7(g) hereof,
this Agreement terminates immediately; (ii)the Company will pay the Employee, in full satisfaction
of all of its compensation (base salary and bonus) obligations under this Agreement, an amount
equal to the sum of any base salary due to the Employee through the last day of employment, plus
any accrued bonus to which the Employee may have been entitled on the last day of employment, but
had not yet been received; (iii) the Company will pay the Employee, within sixty (60) days of such
termination, a lump sum severance payment equal to the greater of one year’s base salary or the
unpaid balance of the annual base salary which would have been payable to Employee through October
31, 2010 and (iv) the Employee’s benefits and rights under any Benefit Plan, other than any basic
health and medical benefit plan, shall be paid, retained or forfeited in accordance with the terms
of such plan; provided, however, that Employer shall have no obligation to make any payments toward
these benefits for Employee from and after termination.
(2) Any payment pursuant to clause (b)(1)(iii) above (the “Termination Payment”):
(a). will be subject to offset for any advances, amounts receivable, and loans, including accrued interest, outstanding on the date of the employment termination; and (b). will not be subject to offset on account of any remuneration paid or payable to the Employee for any subsequent employment the Employee may obtain, whether during or after the period during which the Termination Payment is made, and the Employee shall have no obligation whatever to seek any subsequent employment.
(a). will be subject to offset for any advances, amounts receivable, and loans, including accrued interest, outstanding on the date of the employment termination; and (b). will not be subject to offset on account of any remuneration paid or payable to the Employee for any subsequent employment the Employee may obtain, whether during or after the period during which the Termination Payment is made, and the Employee shall have no obligation whatever to seek any subsequent employment.
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(c) CONSEQUENCES OF TERMINATION FOR CAUSE BY THE COMPANY
If the Employee’s employment is terminated by the Company prior to October 31, 2010 for cause, (i)
subject to Section 7(g) hereof, this Agreement terminates immediately; (ii) the Company will pay
the Employee, in full satisfaction of all of its compensation (base salary and
bonus) obligations under this Agreement, an amount equal to the sum of any base salary due to the
Employee through the last day of employment, plus any accrued bonus to which the Employee may have
been entitled on the last day of employment, but had not yet been received; and (iii) the
Employee’s benefits and rights under any Benefit Plan shall be paid, retained or forfeited in
accordance with the terms of such plan; provided, however, that Employer shall have no obligation
to make any payments toward these benefits for Employee from and after termination.
(d) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR ANY REASON OTHER THAN FOR CAUSE OR EMPLOYEE’S
DEATH OR DISABILITY.
If, upon sixty (60) days’ prior written notice to the Company by the Employee, the Employee’s
employment is terminated by the Employee prior to October 31, 2010 for any reason other than for
cause or Employee’s death or disability, (i) subject to Section 7(g) hereof, this Agreement
terminates immediately; (ii) the Company will pay the Employee, in full satisfaction of all of its
compensation (base salary and bonus) obligations under this Agreement, an amount equal to the sum
of any base salary due to the Employee through the last day of employment, plus any accrued bonus
to which the Employee may have been entitled on the last day of employment, but had not yet been
received; and (iii) the Employee’s benefits and rights under any Benefit Plan, other than any basic
health and medical benefit plan, shall be retained or forfeited in accordance with the terms of
such plan; provided, however, that Employer shall have no obligation to make any payments toward
these benefits for Employee from and after termination.
(e) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR CAUSE.
(1) If, upon sixty (60) days’ prior written notice to the Company by the Employee, the Employee’s
employment is terminated by the Employee prior to October 31,2010, for cause (i) subject to Section
7(g) hereof, this Agreement terminates immediately; (ii) the Company will pay the Employee, in full
satisfaction of all of its compensation (base salary and bonus) obligations under this Agreement,
an amount equal to the sum of any base salary due to the Employee through the last day of
employment, plus any accrued bonus to which the Employee may have been entitled on the last day of
employment, but had not yet been received; (iii) the Company will pay the Employee, within sixty
(60) days of such termination, a lump sum severance payment equal to the greater of one year’s base
salary or the unpaid balance of the annual base salary which would have been payable to Employee
through October 31, 2010; and (iv) the Employee’s benefits and rights under any Benefit Plan, other
than any basic health and medical benefit plan, shall be paid, retained or forfeited in accordance
with the terms of such plan; provided, however, that Employer shall have no obligation to make any
payments toward these benefits for Employee from and after termination.
(2) Any payment pursuant to clause (e)(1)(iii) above (the “Termination Payment”): a) will be
subject to offset for any advances, amounts receivable, and loans, including accrued interest,
outstanding on the date of the employment termination; and b. will not be subject to offset on
account of any remuneration paid or payable to the Employee for any subsequent employment the
Employee may obtain, whether during or after the period during which the termination
Payment is made, and the Employee shall have no obligation whatever to seek any subsequent
employment.
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(f) CONSEQUENCES OF TERMINATION BY THE COMPANY FOR NON-PERFORMANCE BY THE EMPLOYEE.
If the Employee’s employment is terminated by the Company prior to October 31, 2010 for
non-performance by the Employee (i) subject to Section 7(g) hereof, this Agreement terminates
immediately; (ii) the Company will pay the Employee, in full satisfaction of all of its
compensation (base salary and bonus) obligations under this Agreement, an amount equal to the sum
of any base salary due to the Employee through the last day of employment, plus any accrued bonus
to which the Employee may have been entitled on the last day of employment, but had not yet been
received; and (iii) the Employee’s benefits and rights under any Benefit Plan, other than any basic
health and medical benefit plan, shall be paid, retained or forfeited in accordance with the terms
of such plan; provided, however, that Employer shall have no obligation to make any payments toward
these benefits for Employee from and after termination.
(g) PRESERVATION OF CERTAIN PROVISIONS.
Notwithstanding any provisions of this Agreement to the contrary, the provisions of Sections 8
through 11 hereof shall survive the expiration or termination of this Agreement as necessary to
give full effect to all of the provisions of this Agreement.
8. ARBITRATION
(a) any disputes arising under or in connection with this agreement shall be resolved by
arbitration, to be held in Tulsa, Oklahoma in accordance with the rules and procedures of the
American Arbitration Association and the State of Oklahoma.
(b) all costs, fees and expenses of any arbitration in connection with this agreement which result
in any decision or settlement requiring Company to make a payment to Employee, including, without
limitation, attorneys fees of both Employee and Company, shall be borne by, and be the obligation
of, Company. In no event shall Employee be required to reimburse Company for any of the costs and
expenses incurred by Company relating to such arbitration. The obligation of Company under this
section shall survive the termination of this agreement (whether such termination is by Company, by
Employee, upon the expiration of this agreement or otherwise).
(c). pending the outcome or resolution of any arbitration, Company shall continue payment of all
amounts to Employee without regard to any dispute.
9. NON COMPTETE
Employee agrees that for a period of one year following the termination of this agreement he
will not (1) solicit any Company shareholder, policyholder, or premium finance customer to become a
shareholder, policyholder, or premium finance customer of any competitor or anticipated competitor
of Company; or (2) solicit any employee, agent, or independent contractor
of Company to become an employee, agent or independent contractor of any competitor or anticipated
competitor of Company.
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EXCEPTIONS TO NON-COMPETITION COVENANTS.
Notwithstanding anything herein to the contrary or apparently to the contrary, the following shall
not be a violation or breach of the non-competition covenants contained in this Agreement. For a
period of one year after the termination of this agreement Employee may (i) engage in business with
anyone or any companies that employee had an existing relationship with prior to becoming
associated with the Company, (ii) engage in any business, including the insurance or premium
finance business as an agent, employee, shareholder or owner, in any location (iii) conduct
business with any Company shareholder, policyholder or premium finance customer to become a
shareholder, policyholder or premium finance customer of any competitor or anticipated competitor
of Company if .the person solicits Employee, or (iv) hire any employee, agent or independent
contractor of the Company to become an employee, agent or independent contractor of any competitor
or anticipated competitor of Company if the person solicits Employee.
To deliver promptly to Company on termination of Employee’s employment by Company, or at any time
Company may so request, all memoranda, notes, records, reports, and other documents (and all copies
thereof) relating to Company’s and its affiliates’ businesses which Employee may then possess or
have under his control.
10. SUCCESSORS; BINDING AGREEMENT; ASSIGNMENT
The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company to
expressly assume and agree in writing to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place,
provided that the Employee must be given the position as the Chief Executive Officer (“CEO”) and
President with the same authority, powers and responsibilities set forth in Section 1 hereof with
respect to the subsidiary or subdivision which operates the business of the Company as it exists on
the date of such business combination. Failure of the Company to obtain such express assumption and
agreement at or prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to compensation and benefits from the Company in the same
amount and on the same terms to which the Employee would be entitled hereunder if the Company
terminated the Employee’s employment without Cause. For purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the date of termination. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise. The Company may not assign this Agreement, (i) except in connection
with, and to the acquirer of, all or substantially all of the business or assets of the Company,
provided such acquirer expressly assumes and agrees in writing to perform this Agreement as
provided in this Section. The Employee may not assign his rights or delegate his duties or
obligations under this Agreement.
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11. MISCELLANEOUS
(a) This agreement constitutes the entire understanding between the parties regarding the subject
matter hereof and supersedes any and all prior or contemporaneous oral or written communications
and agreements. Nothing herein contained shall be construed so as to require the commission of any
act contrary to law and wherever there is any conflict between any provision of this Agreement and
any present or future statute, law, ordinance or regulation, the latter shall prevail, but in such
event the provision of this Agreement affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements. No representation, promise, or inducement has
been made by either party that is not embodied in this Agreement, and neither party shall be bound
by or liable for any alleged representation, promise, or inducement not so set forth. The section
headings contained herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
This agreement shall not be modified, amended or in any way altered except by an instrument in
writing approved by the Board of Directors of the Company and signed by an officer designated by
the Board of Directors to execute such waiver, modification or discharge and signed by Employee.
(b) If any provision of this Agreement shall be declared to be invalid or unenforceable, in whole
or in part, such invalidity or unenforceability shall not affect the remaining provisions hereof
which shall remain in full force and effect.
(c) Should any portion of this Agreement be adjudged or held to be invalid, unenforceable or void,
such holding shall not have the effect of invalidating or voiding the remainder of this Agreement
and the parties hereby agree that the portion so held invalid, unenforceable or void shall, if
possible, be deemed amended or reduced in scope, or otherwise be stricken from this Agreement to
the extent required for the purposes of validity and enforcement thereof.
(d) The provisions of this Agreement shall inure to the benefit of the parties hereto, their heirs,
legal representatives, successors, and assigns. This Agreement, and Employee’s rights and
obligations hereunder, may not be assigned by Employee. Company may assign its rights, together
with its obligations, hereunder in connection with any sale, transfer or other disposition of all
or substantially all of its business and assets. Company may also assign this Agreement to any
affiliate of Company; provided, however, that no such assignment shall (unless Employee shall so
agree in writing) release Company of liability directly to Employee for the due performance of all
of the terms, covenants, and conditions of this Agreement to be complied with and performed by
Company. The term “affiliate”, as used in this agreement, shall mean any corporation, firm,
partnership, or other entity controlling, controlled by or under common control with Company. The
term “control” (including “controlling”, “controlled by”, and “under common control with”), as used
in the preceding sentence, shall be deemed to mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such corporation, firm,
partnership, or other entity, whether through ownership of voting securities or by contract or
otherwise.
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(e)This agreement shall be construed and enforced in accordance with the laws of the State of
Oklahoma that are applicable to contracts made and to be performed in the State of Oklahoma,
regardless of the actual place of making or performance. Any action or proceeding based upon this
agreement or arising out of its performance shall be initiated in a federal or state court of
competent jurisdiction in Tulsa, Oklahoma and in no other jurisdiction: and each party hereby
consents and submits to the jurisdiction of such federal or state court in Tulsa, Oklahoma. In the
event any term, provision, or portion shall be stricken and the remaining terms, provisions, or
portions shall remain in full force and effect.
(f). This agreement shall become effective upon the signature of Employee and Company’s Chairman of
the Board of Directors.
(g). Employee represents that he has had the right and opportunity to consult with independent
counsel of his own choosing and that he has read and understands the foregoing and he has signed
this agreement of his own free will without duress, coercion or undue influence.
(h). Notices shall be sent via first class mail, postage paid or personal delivery and shall be
deemed to have been received on the earlier of the third day after deposit in the mail or personal
delivery.
Notice to Xxxxx Xxxx:
|
Xxxxx Xxxx | |
| 00000 X 00xx Xxxx Xxx | ||
| Xxxxx, XX 00000 | ||
Notice to Company:
|
First Trinity Financial Corporation | |
| 0000 X. 00xx Xxxxx | ||
| Xxxxx 000 | ||
| Xxxxx, XX 00000 |
Executed this 30th day of October, 2007
Xxxxx Xxxx:
|
/s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx | ||||
Company:
|
By: | /s/ Xxxxx X Xxxxxxxxxxx | ||
| Xxxxx X. Xxxxxxxxxxx | ||||
| Chairman of Board |
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