CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this
“Agreement”) is entered into as of December 19, 2007 by
and between Mark Maron (the “Consultant”) and Sionix
Corporation, a Nevada corporation (the “Corporation”).
The foregoing parties are sometimes referred to hereinafter
individually as a “Party” or collectively as the
“Parties.”
WHEREAS ,
the Corporation believes that the Consultant’s service,
experience, contacts and knowledge are valuable to the Corporation
in connection with its business; and
WHEREAS ,
the Corporation desires to engage the Consultant on a non-exclusive
basis, and the Consultant desires to be engaged by the Corporation,
to provide the consulting services described herein.
NOW, THEREFORE ,
in consideration of the mutual covenants and agreements hereinafter
set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties do hereby covenant and agree as follows:
1.
Engagement .
The Corporation hereby agrees to engage the Consultant and the
Consultant hereby accepts such engagement, on a non-exclusive
basis, upon the terms and subject to the conditions hereinafter set
forth. The Consultant agrees to be available as needed up to two
(2) business days per week to the performance of his duties and
responsibilities hereunder. Subject to Section 8 hereof the
Consultant shall not be prohibited from engaging in any other
business or endeavor , including, without limitation, as an
officer, director, manager, member, partner or stockholder of any
other entities.
2.
Term of Engagement .
Subject to Section 7, the term of the Consultant’s engagement
pursuant to this Agreement shall commence on and as of the date
hereof (the “Effective Date”), and shall terminate on
December 19, 2008 (the “Initial Term”). This Agreement
shall automatically renew for an additional one (1) year period
(the “Successive Term”), unless either Party shall
notify the other in writing of its intent not to renew at least
sixty (60) days prior to the expiration of the Initial Term.
In
this Agreement the word “Term” shall refer to the
Initial Term and the Successive Term, if any.
3.
Authority; Services .
During the Term, the Consultant will have the title “Special
Adviser” and report directly to the Chief Executive Officer
of the Corporation, except as otherwise provided herein, and shall
provide strategic
advisory services, including (a) the preparation of a strategic
plan for the Corporation and the evaluation of its strategic
alternatives, which alternatives may include joint ventures or
other strategic partnerships and alliances, licensing agreements,
leasing agreements or the sale of all or part of the Corporation,
and (b) the selection of any advisors or financiers in connection
with any strategic transaction ,
(c) identifying and preparing analyses of businesses that are
competitive with the Corporation, and (d) such other services as
the Consultant and the Chief Executive Officer shall mutually
determine.
4.
Independent Contractor Status .
Consultant is an independent contractor and not an employee of
Corporation for any purpose whatsoever, including state and federal
taxes and workers' compensation insurance, but is an independent
contractor. Neither this Agreement, the relationship created
between the parties hereto pursuant to this Agreement, nor any
course of dealing between the parties hereto is intended to create,
or shall create, an employment relationship, a joint venture,
partnership or any similar relationship. Consultant does not have,
nor shall Consultant hold out Consultant as having, any right,
power, or authority to create any contract or obligation, either
express or implied, on behalf of, in the name of, or binding upon
Company, or to pledge Company's credit, or to extend credits in the
name of Company.
5.
Nature of Consultant's Relationship to Company
.
Consultant is engaged in Consultant's own business independent of
the Company, and the nature of Consultant's independent contractor
relationship with the Company shall be further defined as
follows:
(a)
State and Federal Taxes .
Company will not withhold any monies for any state, local or
federal taxing authorities from compensation earned by Consultant
pursuant to this Agreement. Company shall prepare and file a Form
1099 with the Internal Revenue Service ("IRS") reporting the
compensation paid to Consultant.
(b)
Fringe Benefits .
Consultant shall receive no fringe benefits under this Agreement
whatsoever, and accordingly, shall receive no insurance benefits,
disability income, vacation, holiday pay, sick pay, expense
reimbursement, or any other benefits.
(c)
Workers' Compensation .
Company shall not provide workers' compensation coverage for
Consultant or Consultant's Agents. Any and all workers'
compensation coverage shall be the sole responsibility of
Consultant.
(d)
Hours .
Consultant shall not be required to work any specified hours or
specified days.
(e)
Licensing/Insurance .
Consultant shall obtain and maintain at Consultant's sole expense
any licenses or insurance required by federal, state or local
law.
(f)
Location .
During the Term, the Consultant may perform his duties from his
home office or at the Corporation's offices in Irvine, California,
at the discretion of the Consultant.
6.
Remuneration .
(a)
Option .
In consideration of the services to be rendered hereunder, the
Consultant shall be granted a non-qualified stock option (the
“Option”), upon the Effective Date, to purchase up to
an aggregate of 5% of the Corporation’s outstanding common
stock, par value $0.001 per share (the “Common Stock”),
on a fully diluted basis calculated as of the Effective Date (the
“Option Shares”), and exercisable for a period of 5
years at an exercise price of $0.25 per share (the “Exercise
Price”), which Option Shares shall be subject to vesting and
certain adjustments as provided in the Notice of Grant of Stock
Option substantially in the form attached hereto as
Exhibit A (the
“Grant Notice”) and the form of Option Agreement
attached thereto as Exhibit A (the “Option Agreement”).
The Corporation agrees to register the Option Shares with the
Securities and Exchange Commission on Form S-8 within 30 days of
the Effective Date. In addition, in the event the
Corporation’s Market Capitalization (as defined in the Grant
Notice) is $175 million or more for 15 consecutive trading days, no
later than the first year anniversary of the expiration of the
Term, then the Corporation will issue to Consultant upon the
conclusion of such 15 trading day period a five-year option to
purchase an additional 1.5% of the Corporation’s outstanding
Common Stock on a fully diluted basis calculated as of the date of
this Agreement, at an exercise price equal to the closing price on
the 15
th day
of such 15 trading day period.
(b)
Expenses .
The Corporation shall reimburse the Consultant for all reasonable
business expenses incurred during Consultant’s engagement
hereunder (the “Expenses”), with any individual
Expenses in excess of two thousand five hundred dollars ($2,500) or
aggregate Expenses in excess of five thousand dollars ($5,000) in
any 30-day period commencing as of the Effective Date to be
submitted to the Corporation’s board of directors (the
“Board”) for pre-approval by the Board.
(c)
Additional Remuneration .
During the Successive Term, if any, the Consultant shall be
entitled to only such remuneration as may be negotiated and
mutually agreed upon in writing by the Parties. The parties agree
that prior to the end of the Initial Term they shall use good faith
efforts to negotiate renumeration for the Successive Term; provided
that nothing herein shall require either party to renew the term of
this Agreement for the Successive Term.
7.
Termination and Termination Benefits .
Notwithstanding the provisions of Section 2, the Consultant’s
engagement under this Agreement shall terminate under the following
circumstances:
(a)
Termination for Cause .
Subject to Section 7(d), the Corporation may terminate Consultant's
engagement under this Agreement for Cause at any time prior to
expiration of the Term. As used herein, "Cause" shall mean
only:
(i)
if
Consultant is convicted of (or pleads nolo contendere to) any
felony;
(ii)
acts
of fraud, misappropriation or embezzlement committed by
Consultant at the expense of the Corporation;
(iii)
a
determination by the Corporation that Consultant has engaged
in willful misconduct, gross negligence or gross or habitual
neglect in the performance of his duties under this Agreement;
or
(iv)
a
material breach by the Consultant of any of the covenants,
terms or provisions of this Agreement that remains uncured for
a period of 30 days after written notice by the Corporation to
the Consultant.
Consultant
shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to him a copy of a
resolution duly adopted by the affirmative vote of a majority
of the Board (not counting the Consultant) at a meeting of the
Board (after reasonable notice to Consultant and opportunity
for Consultant, together with his counsel, to be heard before
the Board and to cure such conduct within thirty (30) days
thereof to the extent curable), finding that in the good faith
opinion of the Board, Consultant engaged in the conduct
described herein, and specifying the particulars
thereof.
(b)
Termination for Good Reason .
Subject to Section 7(d), the Consultant’s engagement under
this Agreement may be terminated by the Consultant for Good Reason
by written notice to the Board. The occurrence of one or more of
the following events shall constitute “Good
Reason”:
(i)
the
Corporation’s material breach of any of the provisions
of this Agreement, which breach is not cured by the
Corporation within fifteen (15) days following written notice
thereof from Consultant; provided, that the Corporation can
only cure such breach on two (2) occasions;
(ii)
any
adverse alteration in Consultant's duties
hereunder;
(iii)
any
reduction in Consultant's compensation;
(iv)
the
Board or the Chief Executive Officer requests the Consultant
to engage in any unlawful activity; or
(v)
a
Change in Control shall occur.
A
"Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs
shall have been satisfied:
(i)
any
"person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Corporation or any Affiliate thereof, is
or becomes after the Effective Date the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation (not including
in the securities beneficially owned by such person any
securi
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