As filed with the Securities and Exchange Commission on April 25, 1997
Registration No. 33-_____
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________
fonix corporation
(Exact name of registrant as specified in its charter)
_________________________
Delaware 22-2994719
(State or other jurisdiction I.R.S. Employer
of incorporation or Identification No.
organization)
60 East South Temple
Salt Lake City, Utah 84111
(801) 328-0161
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Compensation Contract with
Consultant
________________________________
Roger D. Dudley, Executive V.P. and CFO
fonix corporation
60 East South Temple
Salt Lake City, Utah 84111
(801) 328-0161
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Jeffrey M. Jones, Esq.
Durham, Evans, Jones & Pinegar, P.C.
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
(801) 538-2424
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
Title of each class Proposed maximum Proposed maxi-
of securities to be Amount to be offering price per mum aggregate Amount of
registered registered(1) unit offering price registration fee(4)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, 5,000 shares $ 7.94 $ 39,700(2) $ 13.69
par value $.0001
per share, granted
to consultant
Common Shares, 250,000 shares $ 7.49 $ 1,872,500(3) $ 645.69
par value $.0001
per share, subject
to stock warrants
to be granted to
consultant
==============
$ 659.38
</TABLE>
_______________________________________________________________________________
(1) This Registration Statement also covers an indeterminate number of
Common Shares that may be issuable by reason of stock splits, stock dividends
or similar transactions in accordance with Rule 416 under the Securities Act
of 1933, as amended.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based upon
the average of the high and low prices of the Common Shares as reported on
NASDAQ on April 23, 1997 (within 5 business days prior to the date of filing
the registration statement).
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
price at which the warrants may be exercised.
(4) 1/29 of 1 percent of the maximum aggregate offering price, pursuant to
Section 6(b) of the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
this Registration Statement will be sent or given to employees and
consultants as specified by Rule 428(b)(1). Such documents are not required
to be and are not filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by fonix
corporation (the "Company" are incorporated herein by reference:
(a) The Company's Annual Report on Forms 10-KSB and 10-KSB-A
for the fiscal year ended December 31, 1996;
(b) Description of the class of securities of the Company to be
offered, (incorporated by reference to the Registration Statement of the
Company previously filed, pursuant to which the class of Common Stock of the
Company was registered under the Securities Exchange Act of 1934, as
amended).
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
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.
The law firm of Durham, Evans, Jones & Pinegar, P.C. (the
"Firm"), Salt Lake City, counsel to the Company, has rendered an opinion
attached as an exhibit hereto with respect to the legality of the shares of
Common Stock to be registered herein. The Profit Sharing Plan and Trust of
the Firm, together with Messrs. Paul Durham, Richard Evans, Jeffrey Jones and
Kevin Pinegar as individuals, collectively own approximately 90,000 shares of
Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware, together
with Article VII, Section 7, of the Bylaws of the Company, provide for
indemnification of the Company's directors, officers, employees, fiduciaries
or agents, subject to the Company's determination in each instance that
indemnification is in accordance with the standards set forth in the General
Corporation Law and in the Bylaws. The Company may purchase and maintain
liability insurance on behalf of a person who is or was a director, officer,
employee, fiduciary, or agent of the Company against liability asserted
against or incurred by him or her in that capacity or arising from his or her
status as a director, officer, employee, fiduciary, or agent, whether or not
the Company would have power to indemnify him or her against the same
liability under the provisions of the Bylaws. See Article VII, Section 7 of
the Company's Bylaws, which is incorporated herein by reference and which
qualifies the foregoing summary statement.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or otherwise,
the Company has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4 -- Consulting Agreement ("Consulting Agreement") between the
Company and Consultant to the Company, pursuant to which
Consultant receives Common Stock of the Company.
5 -- Opinion of Durham, Evans, Jones & Pinegar, P.C. regarding
validity of Common Stock issuable pursuant to the
Consulting Agreement.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Pritchett, Siler & Hardy, P.C.
23(c) -- Consent of Durham, Evans, Jones & Pinegar, P.C. (included in the
opinion filed as Exhibit 5 to this Registration Statement).
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 that 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.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 the time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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
Company 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 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 Salt Lake City, State of Utah, on
10th day of March, 1997.
fonix CORPORATION
By /s/ Roger D. Dudley
----------------------
Roger D. Dudley
Executive V.P. and CFO
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Roger D. Dudley, his
attorney-in-fact, with the power of substitution, for him and in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post effective amendments), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said attorney-
in-fact or his substitute or substitutes may 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 indicated and on the dates indicated.
Signature Title Date
/s/ Stephen M. Studdert
- -------------------------- CEO, Chairman of the Board March 10, 1997
Stephen M. Studdert of Directors
/s/ Thomas A. Murdock
- -------------------------- President/COO and Director March 10, 1997
Thomas A. Murdock (Principal Executive Officer)
/s/ Roger D. Dudley
- -------------------------- Executive Vice President March 10, 1997
Roger D. Dudley and CFO (Principal Financial
and Accounting Officer)
/s/ Alan C. Ashton, Ph.D.
- -------------------------- Director April 10, 1997
Alan C. Ashton, Ph.D.
/s/ Joseph Verner Reed
- -------------------------- Director March 10, 1997
Joseph Verner Reed
/s/ James B. Hayes
- --------------------------- Director March 10, 1997
James B. Hayes
/s/ Rick D. Nydegger
- --------------------------- Director March 10, 1997
Rick D. Nydegger
/s/ John A. Oberteuffer, Ph.D.
- -------------------------- Director March 10, 1997
John A. Oberteuffer, Ph.D.
<PAGE>
EXHIBIT INDEX
Exhibits
4 -- Consulting Agreement ("Consulting Agreement") between
the Company and Consultant to the Company, pursuant
to which Consultant receives Common Stock of the
Company.
5 -- Opinion of Durham, Evans, Jones & Pinegar, P.C.
regarding validity of Common Stock issuable pursuant
to the Consulting Agreement.
23(a) -- Consent of Deloitte & Touche.
23(b) -- Consent of Pritchett, Siler & Hardy, P.C.
23(c) -- Consent of Durham, Evans, Jones & Pinegar, P.C.
(included in the opinion filed as Exhibit 5 to this
Registration Statement).
CONSULTING AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
1st day of January, 1997 by and between fonix corporation, a Delaware
corporation ("fonix"), and Samuel Koo ("Consultant"). Hereinafter either party
may be referred to as "Party" and collectively as "Parties".
RECITALS:
WHEREAS, fonix is a development stage company, of which the primary
business activity is presently research and development associated with the
commercial exploitation of certain proprietary computer voice recognition
technology and the development and manufacture of a prototype device employing
such technology; and
WHEREAS, fonix desires to develop licensing or strategic partnership
relationships with technology companies in Korea; and
WHEREAS, Consultant desires to introduce fonix to technology companies in
Korea.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CONSULTING
1.1 Description. fonix hereby retains Consultant to perform, and
Consultant hereby agrees to perform, consulting services to fonix as herein
provided.
1.2 Services to be Performed . Consultant will (a) introduce fonix to
Korean technology companies and (b) assist fonix in obtaining executed
confidentiality agreements in a form satisfactory to fonix from such companies.
1.3. Independent Contractor. Consultant acknowledges that Consultant's
retention does not confer upon Consultant any ownership interest in or personal
claim upon any license, right, product of fonix , nor does this Agreement confer
any employment right on Consultant. Consultant agrees that in performing its
duties under this Agreement, it shall be operating as an independent contractor
as that term is defined in Treasury Department regulations and 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 evidence 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 Paragraph 1.3
1.4 Confidentiality and Non-disclosure. Consultant acknowledges that in
the performance of services under this Agreement, he may acquire confidential
information concerning fonix technology, know-how, product plans and
specifications, records, 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 fonix's usual business 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 such information or from rendering any services to any
person or entity to whom any such 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.
1.4.1 In exchange for fonix executing this Agreement and agreeing to the
retention of Consultant's Services by fonix, Consultant does hereby enter into
this Covenant of Confidentiality and acknowledges the adequacy of the
consideration to support this Covenant.
1.4.2 The covenants made by Consultant under Section 1.4 shall survive
the expiration or termination of this Agreement
ARTICLE II
TERM OF CONTRACT
2.1 Term. The term of this Agreement shall be from the effective date
hereof until May 31, 1997, except as provided in Article III.
2.2 Termination for Cause. Consultant acknowledges that his retainer
under this Agreement may be terminated for Cause as set forth herein. For the
purposes of this paragraph,
"Cause" shall mean any of the following:
(a)Fraud;
(b)It is determined that a violation of law has taken place or
is about to take place in connection with this Agreement.
(c)Violation of the confidentiality provisions of this Agreement.
ARTICLE III
COMPENSATION
3.1 Compensation. Consultant by executing this Agreement has earned Five
Thousand (5000) shares of fonix common stock.
3.2. May 31 Letter of Intent. If (a) there is a letter of intent signed
on or before May 31, 1997 between fonix and a Korean technology company which
has been introduced to fonix by Consultant and (b) a definitive agreement
arising from such letter of intent between fonix and a Korean technology
company is entered into and closed no later than 180 days from May 31, 1997,
Consultant will receive warrants which will allow Consultant to purchase two
hundred fifty thousand (250,000) shares of fonix common stock at $7.49 per
share which price is eighty-five percent (85%) of the closing price for shares
of fonix common stock on January 14th, 1997.
3.3. Letter of Intent after May 31. If (a) there is a letter of intent
signed after May 31, 1997 between fonix and a Korean technology company which
has been introduced to fonix by Consultant and (b) a definitive agreement
arising from such letter of intent between fonix and a Korean technology company
is entered into and closed within one year of May 31, 1997, Consultant will
receive warrants which will allow Consultant to purchase 100,000 shares of fonix
common stock at $7.49 per share which price is eighty-five percent (85%) of the
closing price for shares of fonix common stock on January 14th, 1997.
3.4 Failure to Obtain Letter of Intent. If Consultant fails to achieve
the events set forth in section 3.2 or 3.3 above, Consultant will receive no
compensation other than the five thousand ( 5000) shares of fonix common stock
recited in section 3.1 above.
3.5. Registration of Stock. fonix will register as soon as reasonably
possible, any shares of its common stock received by Consultant under this
Agreement pursuant to an S-8 Registration. Consultant represents and warrants
that he has received the most recent annual report (Form 10-KSB) and quarterly
report (Form 10-QSB) for fonix which are delivered with this Agreement. If the
S-8 Registration is successfully challenged by the Securities and Exchange
Commission, making such registration invalid, fonix will, as soon a practicable,
provide registration for Consultant's shares such that Consultant's shares will
be free trading. Warrants will be valid for two years.
3.6 Expenses. Consultant shall be responsible for the payment of any
expenses incurred by Consultant in the providing of Services hereunder.
3.7 Receipt of Stock. If at the time that Consultant desires to receive
shares of stock subject to the warrants referred to in sections 3.2 or 3.3
above, fonix is using the services of a broker to assist its employees in the
exercise of stock options and the sale of stock subject to such options, fonix
will request such broker to assist Consultant and extend the same services to
Consultant in the purchase and sale of stock which Consultant receives under
this Agreement.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any prior written or oral agreements
concerning the subject matter contained herein.
4.2 Amendment. This Agreement may be amended only by the written consent
of the parties.
4.3 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 or
default of this Agreement.
4.4 Notices. Any notices pertaining to this Agreement shall be in
writing and shall be transmitted by personal hand delivery or fax to an officer
or director of fonix or to Consultant, or through the facilities of the United
States Post Office, certified mail, return receipt requested. The addresses set
forth below for the respective parties shall be the places where notices shall
be sent, unless written notice of a change of address is given.
fonix:
fonix corporation
Attention Jeffrey N. Clayton
Vice President - Legal
60 East South Temple
1225 Eagle Gate Tower
Salt Lake City, Utah 84111
Consultant:
Samuel Koo
142 West End Avenue # 17U
New York, NY 10023
Notices given by mail shall be deemed to be delivered on the day such
notice is deposited in the United States mail, postage prepaid.
4.5 Cost of Default. In addition to any other rights or damages
contained herein, in the event either party defaults in the performance of any
term or condition hereunder, the defaulting party shall pay all expenses and
costs incurred by the other party in enforcing the terms hereof, including, but
not limited to, costs, reasonable attorney's fees, expert witness fees and/or
deposition costs, whether incurred through legal action or otherwise and whether
incurred before or after judgment.
4.6 Assignment. The Consultant's rights and duties pursuant to this
Agreement are not assignable without the express written agreement of fonix.
fonix may assign any of its rights or obligations hereunder.
4.7 Consultant not Exclusive Consultant of fonix. Nothing herein shall
restrict or otherwise limit the right of fonix to engage or retain other
consultants, either as employees or as independent contractors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
fonix:
fonix corporation
By: /s/ Roger D. Dudley
-----------------------------
Roger D. Dudley
Title: Executive Vice President
CONSULTANT:
Samuel Koo
/s/ Samuel Koo
--------------------------------
February 25, 1997
New York, New York
DURHAM, EVANS, JONES & PINEGAR, P.C.
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
April 25, 1997
fonix corporation
1225 Eagle Gate Tower
60 East South Temple Street
Salt Lake City, Utah 84111
Re: Registration Statement on Form S-8 relating to fonix corporation
Consultant Compensation Contract (the "Contract")
Dear Sirs:
We have acted as counsel for fonix corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act
of 1933, as amended (the "Act"), of an aggregate of 5,000 shares of the
Company's Common Stock, par value $.0001 per share, and up to 250,000 shares
of Common Stock to be issued upon the exercise of warrants (collectively, the
"Shares"), all in accordance with the terms of the Contract.
In connection with the foregoing, we have examined originals or copies,
certified or otherwise authenticated to our satisfaction, of such corporate
records of the Company and other instruments and documents as we have deemed
necessary as a basis for the opinion hereinafter expressed.
Based upon the foregoing and in reliance thereon, it is our opinion that
the Shares described in the above-referenced Registration Statement, when
issued pursuant to the terms of the Contract, will be validly issued, fully
paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Registration
Statement and the prospectus to be delivered thereunder. 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 Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely,
DURHAM, EVANS, JONES & PINEGAR, P.C.
/s/ DURHAM, EVANS, JONES & PINEGAR
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
fonix corporation on Form S-8 of our report dated March 28, 1997, appearing
in and incorporated by reference in the Annual Report on Form 10-K of fonix
corporation for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Salt Lake City, Utah
April 24, 1997
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of fonix corporation on Form S-8 of our report dated March 4,
1996, except as to note 12, as to which the date is March 28, 1997, filed
as an exhibit to the Company's Annual Report on Form 10-KSB
for the year ended December 31, 1996.
/s/ PRITCHETT, SILER & HARDY, P.C.
Pritchett, Siler & Hardy, P.C.
(formerly Peterson, Siler & Stevenson, P.C.)
Salt Lake City, Utah
April 25, 1996
