CONSULTINGSERVICES AGREEMENT

CONSULTING SERVICES AGREEMENT

THIS CONSULTING SERVICES AGREEMENT (“Agreement”) is made effective as of August 10, 2015 by and between Spherix, Inc. a Delaware corporation, with its corporate headquarters at 6430 Rockledge Drive, Suite 503, Bethesda, Maryland 20817 (“Company”), and Howard E Goldberg, d/b/a Forward Vision Associates, with a principal business address of [REDACTED] (“Consultant”). The above parties are collectively referred to as the “Parties” and individually referred to as a “Party.”

BACKGROUND

1.                 Company is an intellectual property company that owns patented and unpatented intellectual property; Company has expanded its activities in wireless communications and telecommunication sectors including antenna technology, Wi-Fi, base station functionality and cellular through recent portfolio acquisitions from Rockstar Consortium US, LP, and from Harris Corporation as a result of the acquisition of North South Holdings, Inc. (“Spherix IP”).

2.                  Consultant has certain expertise and experience in the field of intellectual property, licensing and technology companies required by Company and desires to consult directly with Company and/or professionals acting on behalf of Company. The scope may include without limitation, interaction with the Company’s outside Counsel, on behalf of the Company, in Consultant’s area of expertise. Such interactions shall be subject to all limitations otherwise set forth in this Agreement with respect to third parties.

3.                  Substantially contemporaneous with the execution of this Agreement, Consultant may become a member of the Company’s Board of Directors, and upon appointment the board will render separate services in that role, outside the scope of this Agreement.

4.                  Company desires to retain the services of Consultant and Consultant desires to render such services.

    NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Parties, intending to be legally bound, agree as follows:

AGREEMENT

1.                 Retention as Consultant. Company hereby retains Consultant, and Consultant hereby agrees to render consulting services to Company, upon the terms and conditions set forth in Schedule 1 attached hereto.

2.                 Duties. Consultant covenants and agrees that he will, as an independent contractor, perform all services as set forth in Exhibit “A” attached hereto and incorporated herein (the “Services”). Consultant further covenants and agrees that he is fully qualified to perform the Services, and shall perform the Services in a prompt, professional and competent manner.

3.                 Independent Contractor Status. Each of the Parties agree and hereby acknowledge that Consultant is an independent contractor and not an employee, agent, or representative of Company, this Agreement does not create an employer-employee relationship between Consultant and the Company and that Consultant shall not have the power or the authority to bind Company in any manner whatsoever. Consultant shall at all times disclose his independent contractor status and that Consultant is not an employee, agent, or representative of Company.

4.                 Taxes. All taxes applicable to any amounts paid by Company to Consultant under this Agreement shall be Consultant’s sole responsibility, and Company shall not withhold or pay any amounts for any foreign tax or any U.S. federal, state or local income tax, Social Security, Unemployment or Workman’s Compensation. Consultant shall not be entitled to receive any employment benefits offered to employees of Company. The Company shall issue Consultant a Form 1099 following the end of its fiscal year, with a copy to the IRS, and Consultant agrees to pay all taxes due in respect of the Consultancy Fee and to indemnify the Company in respect of any obligation that may be imposed on the Company to pay any such taxes or resulting from Consultant’s being determined not to be an independent contractor. Upon request by Company, Consultant will provide documentation evidencing compliance with all applicable laws, regulations and orders in regard to amounts received under this Agreement. Consultant agrees to indemnify, defend and hold Company harmless from the payment of Federal, State and local taxes, as well as the preparation and submission of all reports, returns, and monies which may be imposed or required under any applicable laws, regulations and orders relative to any payments which Company makes to Consultant pursuant to this Agreement.

5.                 Compensation. Company shall pay to Consultant, as compensation for the Services to be rendered, only those amounts set forth in Schedule 1 attached hereto. Consultant shall not be entitled to receive any employment or other benefits offered to employees of Company. Further, Consultant shall not be entitled to charge premiums for overtime or weekend work. It is expected that Consultant will dedicate substantial time and commitment during those days on which Services are rendered. The provision of any additional Services beyond those identified in Schedule 1 and any additional costs associated therewith shall require advance written approval from Company.

6.                 Term. This Agreement shall commence on the date of this Agreement and shall continue until the earlier of (a) one (1) year from the date of this Agreement, or (b) the date on which, by mutual agreement of the Parties, Services have been completed as evidenced by notice of such completion by Consultant. The term of this Agreement may be extended only by written agreement of both Consultant and Company.

7.                 Termination. Except as otherwise provided herein, Company may not terminate this Agreement. Consultant may terminate this Agreement by written notice to Company at least thirty(30) calendar days prior to any anniversary quarter, the first such calendar quarter commencing November 10, 2015 (“Subsequent Quarterly Retainer Period”). Upon any such termination, (a) Company shall be entitled to receive and unconditionally use all work product produced by Consultant in connection with the Services, and Consultant shall promptly deliver all such work product to Company as a condition of final payment hereunder, and (b) Consultant shall be entitled to non-refundable retainer and payment in accordance with this Agreement for Services properly rendered (and for reimbursable expenses properly incurred) prior to such termination, subject to offset for any amounts owing from Consultant to Company hereunder. Upon the effective date of termination of this Agreement, all legal obligations, rights and duties arising out of this Agreement shall terminate except for such legal obligations, rights and duties as shall have accrued prior to the effective date of termination and except as otherwise expressly provided in this Agreement.

8.                  Covenant of Non-Disclosure. Except as otherwise publicly disclosed, Consultant shall not, at any time during or after the term of this Agreement, in any manner, either directly or indirectly, use, divulge, disclose or communicate to any person, firm, corporation or other entity, the existence of this Agreement or its terms, or any Confidential Information, excepting use in performing the Services hereunder, without the express prior written consent of an authorized executive officer of Company in accordance with and governed solely by the terms of a separate Mutual Non-Disclosure Agreement dated August 11, 2015, as of August 10, 2015 (the “Non- Disclosure Agreement”), which Non-Disclosure Agreement is hereby expressly reaffirmed.

9.                  Ownership; Assignment of Ideas. All work product produced by Consultant solely or jointly or arising out of Consultant in connection with his services to the Company (“Work Product”) shall be the sole and exclusive property of the Company, and Consultant waives any rights whatsoever in such Work Product.

     (A)             Consultant will report and does hereby assign to Company (or its designated assignee) all right, title and interest to the Work Product and ideas, concepts, trade secrets, inventions, articles or work, whether patentable, copyrightable or not, created, uncovered or developed during the performance of his/her duties hereunder. All such ideas, concepts, trade secrets, inventions and articles of work shall be considered work “made for hire” and Company shall have the sole right, title and interest in such Work Product and Consultant will not have any rights of any kind whatsoever in such Work Product. Consultant shall execute all documentation and do all such deeds as is reasonably required to vest ownership, right, title and interest in Company and for Company to secure patent or copyright protection, as applicable.

     (B)              In the event that Consultant integrates any work that was previously created by the Consultant into any Work Product, the Consultant shall grant to, and Company is hereby granted, a worldwide, royalty-free, perpetual, irrevocable license to exploit the incorporated items, including, but not limited to, any and all copyrights, patents, designs, trade secrets, trademarks or other intellectual property rights, in connection with the Work Product in any manner that Company deems appropriate. Consultant warrants that it shall not knowingly incorporate into any Work Product any material that would infringe any intellectual property rights of any third party.

10.              Legal and Equitable Relief. Consultant acknowledges that if Consultant breaches, or threatens to breach any of the covenants expressed herein, it would cause immediate and irreparable harm to the Company for which monetary damages to Company may be difficult to measure and be inadequate; therefore, Company will be entitled to apply to a court of competent jurisdiction for injunctive or other equitable relief without proof of actual damages and without posting of a bond or other security to restrain such breach or threat of breach, in addition to all other relief available to Company in either law or equity.

In the event that any or all of the covenants expressed herein shall be determined by a court of competent jurisdiction to be invalid or unenforceable, by reason of its geographic or temporal restrictions being too great, or by reason that the range of activities covered are too great, or for any other reason, these covenants shall be interpreted to extend over the maximum geographic area, period of time, range of activities or other restrictions to which they may be enforceable.

11.              Other Compensation/Conflict of Interest. Consultant hereby represents and warrants that he will receive no compensation from any other party for the performance of its duties to Company, as set forth in Exhibit “A”, except from Company or as otherwise agreed to by Company, and that Consultant will immediately report to Company any potential or actual conflict of interest in the performance of its duties hereunder.

12.              Compliance with Laws and Policies. Consultant shall perform all Services hereunder in compliance with all applicable laws, orders, rules and regulations of governmental authorities. In addition, Consultant shall comply with Company’s policies and procedures applicable to contractors and consultants in connection with its performance of the Services.

13.              Indemnification. Consultant shall defend, indemnify and hold harmless Company, its affiliates, and their respective officers, directors, employees, agents, and representatives, from and against any and all claims, losses, liabilities, and expenses whatsoever (including reasonable attorney’s fees and related disbursements), either in law or in equity, incurred by reason of (i) any breach by Consultant of Sections 11 and 12 hereof, (ii) any failure of Consultant to comply with applicable laws, or (iii) any negligence or willful misconduct of Consultant in connection with this Agreement and/or the performance of Services hereunder. Company shall have the right to offset any amounts due to Company by Consultant for advancements under this Agreement (excluding by way of example and not by way of limitation, any non-refundable Retainer Payments) against any fees or other payments otherwise due Consultant hereunder.

14.                Miscellaneous.

If to Company:

Anthony Hayes, Chief Executive Officer

Spherix Incorporated

1350 Avenue of the Americas, 2nd Floor

New York, NY 10019

If to Consultant:

Howard E. Goldberg d/b/a Forward Vision Associates

[REDACTED]

County, or the U.S. Federal Court for the Southern District of the District of New York and each of the Parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.

* * *

(Signatures continued on the next page)

IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first above written.

COMPANY

Spherix Incorporated

By: ___________________________

Name: _________________________

Title: __________________________ 

CONSULTANT

Howard E. Goldberg d/b/a Forward Vision Associates

By: ____________________________

Print Name: Howard E. Goldberg, Principal

[Balance of this page intentionally left blank]

EXHIBIT “A”

TO

CONSULTING AGREEMENT

Services

Consultant shall perform the following services (“Services”), subject to the monitoring by Anthony Hayes, Chief Executive Officer, or his successor or delegate:

Scope: To the extent that an unusual situation arises in which the context does not clearly delineate as to whether the Services are being performed in a role as a director of Company or as a Consultant hereunder, and to eliminate any doubt or potential conflict of interest, the following shall be considered in determining whether the activities are compensated pursuant to the terms of this Agreement:

SCHEDULE I TO

CONSULTING AGREEMENT

Billing Rates (1), (2):

•      Equity due hereunder shall be in the form mutually agreed between Consultant and the Company based upon Federal Income Tax deferral to the Consultant. Primary consideration shall be given to structuring of restricted stock whose vesting terms are primarily time-based without further performance limitations. In any case, all valuations shall be based upon an IRC Sec. 409A valuation that is current and relevant to the time and circumstances of the issuance.

$175/hr for non-working billable hours in excess of one hour each way on a daily basis

Billing Policies:

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