C & J FINANCIAL, LLC
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into effective
as of this 16th day of July, 2007, by and between C & J FINANCIAL, LLC ("C & J
Financial"), a limited liability company organized under the laws of the State
of Alabama, and XXXXX XXXX, XX. ("Consultant"), a resident of the State of
Alabama.
WITNESSETH:
WHEREAS, pursuant to a Unit Purchase Agreement (the "Purchase Agreement"),
Security National Financial Corporation; a Utah corporation ("Security
National") is purchasing all of the issued and outstanding units of C & J
Financial, of which Consultant is the Manager and a unitholder of C & J
Financial. This Agreement is being executed as of the Closing Date of said
Purchase Agreement (the "Closing Date");
WHEREAS, the principal business of C & J Financial is to operate a
factoring business with the primary purpose of providing financing for funeral
homes and mortuaries located throughout the United States; and
WHEREAS, Security National desires to obtain the assistance of Consultant
in effecting an orderly transition in the ownership and operation of C & J
Financial's business, and Consultant desires to give such assistance upon the
terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
TERMS OF AGREEMENT
Section 1 - Consultation Services
1.1 For a period of one (1) year (the "Term") commencing on the date of
this Agreement, Consultant agrees to make himself available from time to time as
requested by C & J Financial to advise and consult with C & J Financial
concerning any and all aspects of its business operations. Consultant agrees to
make himself available at reasonable times and as reasonably necessary to
provide consulting services for up to a half (50%) of his time during the
business days throughout the Term of this Agreement.
Section 2 - Consulting Fee and Expenses
2.1 In consideration of Consultant providing consulting services hereunder,
C & J Financial agrees to pay Consultant a consultant fee (the "Consultant Fee")
in the amount of $50.00 per hour for said consulting services: 2.2 C & J
Financial further agrees to promptly reimburse Consultant for all reasonable
out-of-pocket business expenses incurred in providing consulting services
hereunder, in accordance with C & J Financial's policies with respect thereto in
effect from time to time (including without limitation policies regarding prior
consent for significant expenditures), provided that Consultant promptly
furnishes to C & J Financial adequate records and other documentary evidence
required by all federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of each such business
expense as a deduction on the federal and state income tax returns of C & J
Financial.
Section 3 - Covenant Not to Compete
3.1 Consultant hereby covenants and agrees that during the Term of this
Agreement and for a period of four (4) additional years thereafter, he will not,
except as a consultant of C & J Financial, directly or indirectly own, manage,
operate, join, control, or participate in the ownership, management, operation
or control of, or be connected with (as director, officer, employee, agent,
independent contractor of otherwise) in any other manner with any business which
is the same or substantially similar in nature to the business engaged in by C &
J Financial, which is the operation of a factoring business with the principal
purposes of providing financing for funeral homes and mortuaries in the State of
Alabama, and each of the other states in the United States in which C & J
Financial is now engaged or becomes engaged during the Term of this Agreement
(whether directly or indirectly through subsidiaries, affiliates, franchisees,
licensees, representatives, agents or otherwise) during the Term of this
Agreement and for a period of four (4) years thereafter.
3.2 Consultant shall not, directly or indirectly, employ, solicit for
employment, or advise or recommend to any other person that they employ or
solicit for employment, any employee of C & J Financial, during the Term of this
Agreement and for a period of four (4) additional years thereafter; provided
however, that this Section shall not preclude Consultant from giving an
employment reference at the request of any employee of C & J Financial or at the
request of a prospective employer of such employee.
3.3 Consultant shall not, during the Term of this Agreement, engage in any
employment, occupation, consulting or other business activity directly related
to the business in which C & J Financial is now involved or becomes involved
during the Term of this Agreement, nor will Consultant engage in any other
activities that conflict with Consultant's obligations to C & J Financial.
3.4 Consultant understands and acknowledges that C & J Financial is
entering into this Agreement in reliance upon the unique and essential nature of
the personal services that Consultant is to perform as a consultant of C & J
Financial and that irreparable injury would befall or its subsidiaries should
Consultant serve a competitor of, or compete with C & J Financial.
3.5 Consultant covenants and agrees that C & J Financial's remedy at law
for any breach or violation of the provisions of Sections 3 and 4 of this
Agreement are inadequate and that, in the event of any such breach or violation,
C & J Financial shall be entitled to injunctive relief in addition to any other
remedy, at law or in equity, to which it may be entitled.
3.6 Consultant specifically acknowledges and agrees that the limitation
during the Term of this Agreement and for four (4) additional years thereafter
upon Consultant's activities as specified above, together with the geographical
limitations set forth above, are reasonable limitations as to time and place
upon Consultant's activities and that the restrictions are necessary to
preserve, promote and protect the business, accounts and good-will of C & J
Financial and impose no greater restraint than is reasonably necessary to secure
such protection.
3.7 In the event that any provision of this Section 3 shall be held invalid
or unenforceable by a court of competent jurisdiction by reason of the
geographic or business scope or the duration thereof, such invalidity or
unenforceability shall attach only to the scope or duration of such provision
and shall not affect or render invalid or unenforceable any other provision of
this Section 3 and, to the fullest extent permitted by law, this Section 3 shall
be construed as if the geographic or business scope or the duration of such
provision had been more narrowly drafted so as not to be invalid or
unenforceable but rather to provide the broadest protection to C & J Financial
permitted by law.
Section 4 - Confidential Information Agreement.
4.1 Consultant agrees that Consultant will keep confidential and will not,
during or after the Term of this Agreement, disclose, divulge, furnish or make
accessible to any person, firm, corporation or other business entity, any
information, trade secrets, customer information, marketing information, sales
information, cost information, technical data, know-how, secret processes,
discoveries, methods, patentable or unpatentable ideas, formulae, processing
techniques or technical operations relating to the business, business practices,
methods, products, processes, equipment or any confidential or secret aspect of
the business of C & J Financial (collectively, the "Confidential Information")
without the prior written consent of C & J Financial. Upon the termination of
this Agreement for any reason, and at any time prior thereto upon request by C &
J Financial, Consultant shall return to C & J Financial all written records of
any Confidential Information, together with any and all copies of such records,
in Consultant's possession. Any Confidential Information which Consultant may
conceive of or make during the Term of this Agreement shall be and remain the
property of C & J Financial. Consultant agrees promptly to communicate and
disclose all such Confidential Information to C & J Financial and to execute and
deliver to C & J Financial any instruments deemed necessary by C & J Financial
to effect disclosure and assignment thereof to it.
Section 5 - Warranties and Representations
5.1 Each party represents to the other party and warrants that such party
has all of the requisite power and authority to enter into this Agreement and to
perform each and every term, provision, and obligation of this Agreement and
that neither the execution nor delivery of this Agreement shall conflict with or
result in a breach of the terms, provisions, or obligations of, or constitute a
default under, any other agreement or instrument under which such party is
obligated.
Section 6 - Assignment
6.1 This Agreement is personal to the Consultant and the Consultant shall
not have the right to assign or otherwise transfer in whole or in part his
duties under this Agreement.
6.2 C & J Financial shall have the right to assign or transfer in whole or
in part its rights and obligations under this Agreement, provided that no
assignment or transfer by C & J Financial shall be deemed effective unless and
until such assignee or transferee has agreed in writing to be bound by the terms
and provisions of this Agreement; in such event, the term "C & J Financial" as
used herein shall include such assignee or transferee.
Section 7 -Taxes
7.1 Consultant is an independent contractor and is not an employee of C & J
Financial. Consultant shall be solely responsible for the payment and discharge
of any taxes, withholdings, or duties imposed by any government or governmental
agency relating to any Consulting Fees paid to him under this Agreement. C & J
Financial may, at its option, deduct from the Consulting Fees set forth in
section 3 of this Agreement, an amount equal to such taxes, withholdings, or
duties.
Section 8 - Notices
8.1 All notices, demands, and other communications under this Agreement
shall be in writing and shall be transmitted by United States certified or
registered mail, postage prepaid, or by reputable private express courier, or by
telex or telegram or by facsimile transmission to the parties at the following
locations or facsimile numbers:
(a) In the case of C & J Financial:
C & J Financial, LLC
c/o Security National Financial Corporation
0000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile Number: (000) 000-0000
With a copy to:
Mackey Price Xxxxxxxx & Xxxxxx
000 Xxxxxxxx Xxxxx II
00 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
(b) In the case of Consultant:
Xxxxx Xxxx, Xx.
Xxxx Industries, Incorporated
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
With a copy to:
Henslee, Robertson, Straum & Xxxxxxxx, LLC
000 Xxxxxxxx Xxxxxx
X.X. Xxx 000 Xxxxxxx, Xxxxxxx 00000 Attn: R. Xxxx Xxxxxxx,
Esq. Facsimile Number: (000) 000-0000
The parties hereto may give written notice of change of address and, after such
notice has been received, any notice or request shall thereafter be given to
such party at the changed address.
Section 9 - Applicable Law
9.1 The validity and interpretation of this Agreement shall be governed by
and enforced and interpreted under and in accordance with the laws of Alabama as
such law shall from time to time be in effect.
Section 10 - Attorney's Fees
10.1 In the event there is a default under this Agreement and it becomes
reasonably necessary for any party to employ the services of an attorney, either
to enforce or terminate this Agreement, with or without litigation, the losing
party or parties to the controversy arising out of the default shall pay to the
successful party or parties reasonable attorney's fees and, in addition, such
costs and expenses as are incurred in enforcing or in terminating this
Agreement.
Section 11 - Termination
11.1 Except for Consultant's duties under Sections 3 and 4, this Agreement
shall terminate when Consulting Fees are no longer payable under Section 2.
Section 12 - General Provisions
12.1 The parties hereto have read this Agreement and agree to be bound by
all its terms. The parties further agree that this Agreement shall constitute
the complete and exclusive statement of the Agreement between them and
supercedes all proposals, oral or written, and all other communications between
them.
12.2 No agreement changing, modifying, amending, extending, superceding, or
discharging this Agreement or any provisions hereof shall be valid unless it is
in writing and is signed by a duly authorized representative of the party or
parties to this Agreement.
12.3 The provisions of this Agreement are severable, and in the event that
any provision of this Agreement shall be held to be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
12.4 The failure of any of the parties hereto to enforce any of the
provisions of this Agreement or any rights with respect thereto or the failure
to exercise any election provided for herein, shall in no way be considered a
waiver of such provisions, rights or elections or in any way affect the validity
of this Agreement. No term or provision hereof shall be deemed waived and no
breach excused, unless such waiver or consent shall be in writing and signed by
the party claimed to have waived or consented. The failure by any of the parties
hereto to enforce any of said provisions, rights, or elections shall not
preclude or prejudice such party from either enforcing or exercising the same or
any other provisions, rights, or elections which it may have under this
agreement. Any consent by any party to, or waiver of, a breach of this Agreement
by the other party (whether expressed or implied) shall not constitute a consent
to, a waiver of, or excuse of different or substitute breach. All remedies
herein conferred upon any party shall be cumulative and no one shall be
exclusive of any other remedy conferred herein by law or equity.
12.5 C & J Financial and Consultant, except as provided herein, each shall
bear all costs and expenses incurred in the performance of their respective
duties under this Agreement.
12.6 This Agreement shall be binding not only upon the parties hereto, but
also upon, without limitation thereto, their successors, heirs, devises,
divisions, subsidiaries, officers, directors, employees, agents,
representatives, and any and all persons or entities in privity with them or
having notice of this Agreement.
12.7 Headings used in the Agreement are for reference purposes only and
shall not be deemed a part of this Agreement.
12.8 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, all of which constitute one and the
same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first mentioned above.
C & J FINANCIAL:
C & J FINANCIAL, LLC
By: /s/ Xxxxx X. Xxxxx, President and Manager
Xxxxx X. Xxxxx, President and Manager
CONSULTANT:
/s/ Xxxxx Xxxx, Xx.
Xxxxx Xxxx, Xx.
