CONSULTING AGREEMENT Amendment #1
Exhibit
4(a)
Amendment
#1
This
Agreement is made this 31st day
of March, 2009, by and between Geng
Hongxiang, whose address is ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇. ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, CHINA, 200127, hereinafter referred to as the "Consultant",
and G-Soft Inc, a Shanghai WOFE and wholly owned subsidiary of Fonix
Corporation, a Delaware corporation, whose principal place of business is
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ,
hereinafter referred to as "Company" or “Fonix.”
W I T N E
S E T H:
WHEREAS, all terms and
conditions of the Agreement “Consulting Agreement” between the Company and the
Consultant dated March 31, 2009 is in effect; and
WHEREAS, the Company desires
to engage the services of the Consultant to perform for the Company consulting
services as an independent contractor and not as an employee; and
WHEREAS, Consultant desires to
consult with the Board of Directors, the officers of the Company, and the
administrative staff, and to undertake for the Company consultation as to the
direction of certain functions of the Company as described herein.
NOW, THEREFORE, it is agreed
as follows:
1. Term. The respective duties
and obligations of the contracting parties shall commence on the
1st day
of July , 2009, and may be terminated by either party after giving thirty
(30) days' written notice to the other party at the addresses stated above or at
an address chosen subsequent to the execution of this Agreement and duly
communicated to the party giving notice.
2. Consultation Assignment. Consultant shall be
available to consult with the Board of Directors, the officers of the Company,
and the heads of the administrative staff, at reasonable times, concerning
matters pertaining to accounting, financial planning and reporting, coordinating
with and consolidating certain financial reports with Chinese-based entities
Consultant shall consult with the CEO and other Fonix
employees and advisors as requested.
3.
Independent
Contractor. Consultant acknowledges that Consultant’s
retention does not confer upon Consultant any ownership interest in or personal
claim upon any license, right or product of the Company, nor does this Agreement
confer any employment right on Consultant. Consultant agrees that in
performing his duties under this Agreement, he shall be operating as an
independent contractor as that term is defined in United States Treasury
Department regulations and United States Internal Revenue Service rulings and
interpretations. Nothing contained herein shall in any way constitute
any association, partnership, employer/employee relationship, or joint venture
between the parties hereto, or be construed to be evidence of the intention of
the parties to establish any such relationship. Neither party shall
have any right, power or authority to make any representation nor to assume or
create any obligation, whether express or implied, on behalf of the other, or to
bind the other party in any manner whatsoever. Both of the parties
agree, respectively, that they shall not hold themselves out in any manner that
would be contrary to the terms of this Section 3.
4. Confidentiality and
Non-Disclosure. Consultant acknowledges that in performance of
services under this Agreement, he may acquire confidential information
concerning Fonix technology, know-how, product development and marketing plans,
business concepts, financial matters and other information which are valuable,
special and unique assets of Fonix (herein “Information”). Consultant
will not, during or after the term of this Agreement, disclose any Information,
no matter how acquired, to any person or entity for any reason or purpose
outside of Consultant’s enumerated consulting activities as defined hereunder,
and will not in any manner directly or indirectly aid or be a party to any acts,
the effects of which would tend to divert, diminish or prejudice the technology,
good will, business or business opportunities of Fonix. In the event
of a threatened breach by Consultant of the provisions of this paragraph, Fonix
shall be entitled to an injunction restraining Consultant from disclosing any
Information or from rendering any services to any person or entity to which any
Information has been disclosed or threatened to be disclosed. Nothing
herein shall be construed as prohibiting Fonix from pursuing any other remedies
available to Fonix for actual breach of the provision of this paragraph,
including the recovery of damages from Consultant.
(a) In
exchange for Fonix executing this Agreement and agreeing to the retention of
Consultant’s services by Fonix, Consultant does hereby enter into the covenant
of confidentiality set forth in this Section 4 (the “Confidentiality
Covenant”) and acknowledges the adequacy of the consideration to support
the Confidentiality Covenant.
(b) The
Confidentiality Covenant shall survive the expiration or termination of this
Agreement.
5. Liability. With regard to the
services to be performed by the Consultant pursuant to the terms of this
agreement, Consultant shall not be liable to the Company, or to anyone who may
claim any right due to any relationship with the Company, for any acts or
omissions in the performance of services on the part of Consultant, except when
said acts or omissions of Consultant are due to willful misconduct or gross
negligence. The Company shall hold Consultant free and harmless from any
obligations, costs, claims, judgments, attorneys' fees, and attachments arising
from or growing out of the services rendered to the Company pursuant to the
terms of this Agreement or in any way connected with the rendering of services
hereunder, except when the same shall arise due to the willful misconduct or
gross negligence of Consultant and Consultant is adjudged to be guilty of
willful misconduct or gross negligence by a court of competent
jurisdiction.
6. Indemnification. Consultant
will indemnify and hold harmless Fonix and its directors, officers, and each
person, if any, who controls Fonix within the meaning of the Securities Act of
1933, as amended (the “Act”), from and
against any and all losses, claims, damages, expenses, liabilities or actions to
which any of them may become subject under applicable law (including, without
limitation, the Act) and will reimburse them or any legal or other expenses
incurred by them in connection with investigating or defending any claims or
actions, whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities or actions arise out of or are based upon
Consultant’s willful misconduct or gross negligence. The
indemnification agreement contained in this paragraph shall remain in full force
or effect, regardless of any investigation made by or on behalf of Consultant,
and shall survive the consummation of the termination of this
Agreement.
7. Compensation. The
Consultant shall receive from the Company for the performance of the services
rendered to the Company pursuant to the terms of this Agreement five hundred thousand (500,000)
shares of Fonix Class A common stock (the “Compensation
Shares”). Any offer or issuance of the Compensation Shares
under this Agreement shall be subject to the filing and effectiveness, at or
prior to the time this Agreement is executed by Fonix, of a registration
statement under the Act on Form S-8, covering the Compensation
Shares. The Compensation Shares be issued to Consultant promptly
after the filing and effectiveness of a registration statement under the Act on
Form S-8, covering the Compensation Shares.
8. Arbitration. Any controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration in accordance of the rules of the American
Arbitration Association using a single arbitrator, and judgment upon the award
rendered by the arbitrator shall be entered in any court having jurisdiction
thereof. For that purpose, the parties hereto consent to the jurisdiction and
venue of an appropriate court located in the County of Salt Lake, State of Utah.
In the event that arbitration and subsequent litigation results from or arises
out of this Agreement or the performance thereof, the losing party agrees to
reimburse the prevailing party's reasonable attorney's fees, court costs, and
all other expenses, whether or not taxable by the court as costs, in addition to
any other relief to which the prevailing party may be entitled. In such event,
no arbitration proceeding shall be entertained or pursued if filed or commenced
more than one year subsequent to the date the cause(s) of action actually
accrued regardless of whether damages were otherwise as of said time
calculable.
9. Assignment. The
Consultant’s rights and duties pursuant to this Agreement are not assignable
without the express written agreement of Fonix, which may be withheld for any
reason or no reason. Fonix may assign any of its rights or
obligations hereunder.
10. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Utah of the United States of America.
11. Amendment. This
Agreement may be amended only by the written consent of the
parties.
12. Waiver. No waiver
of any breach or default of this Agreement by either party hereto shall be
considered to be a waiver of any other breach of default of this
Agreement.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first written
above.
CONSULTANT
|
By:
|
/s/
|
Date:
July 1, 2009
|
|
|
Geng
Hongxiang
|
|||
|
G-Soft
Inc and FONIX CORPORATION
|
|||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
Date:
July1, 2009
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|||
|
CEO
|
|||
END