As filed with the Securities and Exchange Commission on April__,2004 Reg.No.33
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
Sionix Corporation.
(Exact name of registrant as specified in its charter)
Nevada 87-0428526
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
9272 Jeronimo Road, Suite 108
Irvine, CA 92618
Tel: (949) 454-9283
(Address of principal executive offices)
________________________________________________
CONSULTING AGREEMENT
(Full title of plan)
________________________________
James Houtz,
President
9272 Jeronimo Road, Suite 108
Irvine, CA 92618
(Name and address of agent for service)
Tel: (949) 454-9283
(Telephone number, including area code of agent for service)
Copy to:
Michael L. Corrigan, Esq.
7770 Regents Rd. Suite 113-401
San Diego, CA 92122-1967
(858) 362-1440
CALCULATION OF REGISTRATION FEE
-------------------------------
CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed Proposed
Title of securities Amount to be maximum maximum Amount of
to be registered Registered offering price Aggregate offering Registration fee
per share Price
- ------------------ -------------- -------------- ------------------ -----------------
Common Stock
(no par value) 3,000,000 $ .02 $ 60,000 $7.60
- ------------------ -------------- -------------- ------------------ -----------------
(1) Represents 3,000,000 shares of Common Stock to be issued as compensation for
services rendered.
(2) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457(h) of the General Rules and Regulations
under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating parties in accordance with Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"). Such document(s) are not
being filed with the Commission pursuant to the introductory Note to Part 1 of
Form S-8, but constitute (along with the documents incorporated by reference to
the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that meets the requirements of Section 10(a) of the Act.
Purposes:
The Common Stock will be issued by the Company pursuant to an agreement entered
into by the Company and approved by the Board of Directors of the Company (the
"Board of Directors"). The agreement is intended to provide a method whereby the
Company may be stimulated by the personal involvement of the Consultant in the
Company's business thereby advancing the interests of the Company, and all of
its shareholders.
Common Stock:
The Board has authorized the issuance of up to 3,000,000 shares of the Common
Stock to the Consultant upon effectiveness of the registration statement.
Consultants:
The Consultant has agreed to provide its expertise and advice to the Company on
a non-exclusive basis for the purpose of generally representing the Company with
respect to certain legal matters.
No Restrictions on Transfer
Upon the shares becoming "Earned" pursuant to the terms of Consultant's
engagement agreement, the Consultant will become the record and beneficial owner
of the shares of Common Stock upon issuance and delivery and is entitled to all
of the rights of ownership, including the right to vote any shares awarded and
to receive ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultant
The Common Stock is not qualified under Section 401(a) of the Internal Revenue
Code. The Consultant, therefore, will be deemed for federal income tax purposes
to recognize ordinary income during the taxable year in which the first of the
following events occurs: (a) the shares become freely transferable, or (b) the
shares cease to be subject to a substantial risk of forfeiture. Accordingly, the
Consultant will receive compensation taxable at ordinary rates equal to the fair
market value of the shares on the date of receipt since there will be no
substantial risk of forfeiture or other restrictions on transfer. If, however,
the Consultant receives shares of common stock pursuant to the exercises of an
option or options at an exercise price below the fair market value of the shares
on the date of exercise, the difference between the exercise price and the fair
market value of the stock on the date of exercise will be deemed ordinary income
for federal tax purposes. The Consultant is urged to consult his tax advisor on
this matter. Further, if any recipient is an "affiliate", Section 16(b) of the
Exchange Act is applicable and will affect the issue of taxation.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in accordance with
the foregoing discussion will be an expense deductible by the Company for
federal income tax purposes in the taxable year of the Company during which the
recipient recognizes income.
Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common Stock
hereunder, the affiliate will be subject to Section 16(b) of the Exchange Act.
Further, in the event that any affiliate acquiring shares hereunder has sold or
sells any shares of Common Stock in the six months preceding or following the
receipt of shares hereunder, any so called "profit", as computed under Section
16(b) of the Exchange Act, would be required to be disgorged from the recipient
to the Company. Services rendered have been recognized as valid consideration
for the "purchase" of shares in connection with the "profit" computation under
Section 16(b) of the Exchange Act. The Company has agreed that for the purpose
of any "profit" computation under 16(b) the price paid for the Common Stock
issued to affiliates is equal to the value of services rendered. Shares of
Common Stock acquired hereunder by persons other than affiliates are not subject
to Section 16(b) of the Exchange Act.
Item 2. Registrant Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: 9272 Jeronimo Road, Suite, Suite 108, Irvine, CA 92618.
Legal Opinions and Experts
Michael L. Corrigan has rendered an opinion on the validity of the securities
being registered.
The financial statements of Sionix Corp. by reference in the Company's Annual
Report (Form 10-KSB) for the period ended September 30, 2003, have been audited
by Kabani & Company, Inc., as set forth in their report incorporated herein by
reference and are incorporated herein in reliance upon such report given upon
the authority of the firm as experts in auditing and accounting.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration
statement and are not required to be filed with this registration statement:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 2003 filed on January 13, 2004 pursuant to Section
15(d) of the Securities Exchange Act of 1934, as amended.
(b) Registrant's quarterly reports on Form 10-QSB, for the fiscal
quarters ended December 31, 2003, June 30, 2003, and March 31, 2003 and
registrant's current reports on Form 8-K, filed pursuant to Section 15(d)
of the Securities Exchange Act of 1934, as amended.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered
hereunder have been sold, or which deregisters all securities then remaining
unsold under this registration statement, 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. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Subsection 1 of Section 78.037 of the Nevada Revised Statutes (the "Nevada Law")
empowers a corporation to eliminate or limit the personal liability of a
director or officer to the corporation or its stockholders for damages for
breach of fiduciary duty as a director or officer, but such a provision must not
eliminate or limit the liability of a director or officer for (a) acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law or (b) the payment of distributions in violation of Section 78.300of the
Nevada Law.
The Articles of Incorporation of the Company limit the personal liability
of its directors and officers for damages for breach of fiduciary duty in a
manner identical in scope to that permitted under the Nevada Law. The Articles
of Incorporation of the Company also provide that any repeal or modification of
that provision shall apply prospectively only.
Subsection 1 of Section 78.7502 of the Nevada Law empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise (an
"Indemnified Party"), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
Indemnified Party in connection with such action, suit or proceeding if the
Indemnified Party acted in good faith and in a manner the Indemnified Party
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe the Indemnified Party's conduct was unlawful.
Subsection 2 of Section 78.7502 of the Nevada Law empowers a corporation to
indemnify any Indemnified Party who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in the capacity of an Indemnified Party against
expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by the Indemnified Party in connection with the defense or
settlement of such action or suit if the Indemnified Party acted under standards
similar to those set forth above, except that no indemnification may be made in
respect of any claim, issue or matter as to which the Indemnified Party shall
have been adjudged to be liable to the corporation or for amounts paid in
settlement to the corporation unless and only to the extent that the court in
which such action or suit was brought determines upon application that in view
of all the circumstances the Indemnified Party is fairly and reasonably entitled
to indemnity for such expenses as the court deems proper.
Section 78.7502 of the Nevada Law further provides that to the extent an
Indemnified Party has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsection (1) or (2) described
above or in the defense of any claim, issue or matter therein, the corporation
shall indemnify the Indemnified Party against expenses (including attorneys'
fees) actually and reasonably incurred by the Indemnified Party in connection
therewith.
Subsection 1 of Section 78.751 of the Nevada Law provides that any
discretionary indemnification under Section 78.7502 of the Nevada Law, unless
ordered by a court or advanced pursuant to Subsection 2 of Section 78.751, may
be made by a corporation only as authorized in the specific case upon a
determination that indemnification of the Indemnified Person is proper in the
circumstances. Such determination must be made (a) by the stockholders, (b) by
the board of directors of the corporation by majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding,
(c) if a majority vote of a quorum of such disinterested directors so orders, by
independent legal counsel in a written opinion, or (d) by independent legal
counsel in a written opinion if a quorum of such disinterested directors cannot
be obtained.
Subsection 2 of Section 78.751 of the Nevada Law provides that a
corporation's articles of incorporation or bylaws or an agreement made by the
corporation may require the corporation to pay as incurred and in advance of the
final disposition of a criminal or civil action, suit or proceeding, the
expenses of officers and directors in defending such action, suit or proceeding
upon receipt by the corporation of an undertaking by or on behalf of the officer
or director to repay the amount if it is ultimately determined by a court that
he is not entitled to be indemnified by the corporation. Subsection 2 further
provides that the provisions of that Subsection 2 do not affect any rights to
advancement of expenses to which corporate personnel other than officers and
directors may be entitled under contract or otherwise by law. Subsection 3 of
Section 78.751 of the Nevada Law provides that indemnification and advancement
of expenses authorized in or ordered by a court pursuant to Section 78.751 does
not exclude any other rights to which the Indemnified Party may be entitled
under the articles of incorporation or any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or in another capacity while holding his office. However,
indemnification, unless ordered by a court pursuant to Section 78.7502 or for
the advancement of expenses under Subsection 2 of Section 78.751 of the Nevada
Law, may not be made to or on behalf of any director or officer of the
corporation if a final adjudication establishes that his or her acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action. Additionally, the scope of such
indemnification and advancement of expenses shall continue as to an Indemnified
Party who has ceased to hold one of positions specified above, and shall inure
to the benefit of his or her heirs, executors and administrators.
Section 78.752 of the Nevada Law empowers a corporation to purchase and
maintain insurance or make other financial arrangements on behalf of an
Indemnified Party for any liability asserted against such person and liabilities
and expenses incurred by such person in his or her capacity as an Indemnified
Party or arising out of such person's status as an Indemnified Party whether or
not the corporation has the authority to indemnify such person against such
liability and expenses.
The Bylaws of the Company provide for indemnification of Indemnified
Parties substantially identical in scope to that permitted under the Nevada Law.
Such Bylaws provide that the expenses of directors and officers of the Company
incurred in defending any action, suit or proceeding, whether civil, criminal,
administrative or investigative, must be paid by the Company as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of such director or
officer to repay all amounts so advanced if it is ultimately determined by a
court of competent jurisdiction that the director or officer is not entitled to
be indemnified by the Company.
The above-described provisions relating to the indemnification of directors
and officers are sufficiently broad to permit the indemnification of such
persons in certain circumstances against liabilities (including reimbursement of
expenses incurred) arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits to this registration statement are listed in the index to Exhibits.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during the 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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement., and,
(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
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant 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.
4. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
5. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant'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 pursuant to the plan's annual report pursuant to section 15(d) for 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 that time shall be deemed to be the initial bona fide offering thereof.
6. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
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 registrant will, unless in the opinion of 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 Act and will be governed by the final adjudication of
such issue.
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 of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, whereunto duly
authorized, in Irvine, California, on April 12, 2004.
Sionix Corp.
By /s/ James Houtz
-----------------------------
James Houtz, President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated:
Signature Title Date
- --------- ----- ----
(1) Principal Executive Officer
/s/ James J. Houtz President and a Director April 12, 2004
- ------------------------------
James J. Houtz
(2) Principal Financial and Accounting
Officer
/s/ Robert E. McCray Chief Financial Officer April 12, 2004
- ------------------------------ and a Director
Robert E. McCray
(3) Directors
/s/ Joan C.Horowitz Secretary/Treasurer and a April 12, 2004
- ------------------------------ Director
Joan C. Horowitz
/s/ Rodney Anderson Director April 12, 2004
- ------------------------------
Rodney Anderson
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- --- -----------
4.1 Consulting Agreement, Christina Posey
5.1 Opinion of Counsel, Michael L. Corrigan
23.1 Consent of Kabani & Company, Inc.
23.2 Consent of Michael L. Corrigan
(included in Exhibit 5)