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As filed with the Securities and Exchange Commission on February 11, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIONIX CORPORATION
(Exact name of registrant as specified in its charter)
UTAH 87-0428526
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9272 JERONIMO ROAD
IRVINE, CA 92618
(Address of Principal Executive Office) (Zip Code)
CONSULTING AGREEMENT WITH DAVID PHILLIPS, DATED AUGUST 19, 1998
CONSULTING AGREEMENT WITH DON BASCH, DATED AUGUST 19, 1998
(Full titles of the plans)
JAMES J. HOUTZ
9272 JERONIMO ROAD
IRVINE, CA 92618
(Name and address of agent for service)
(949) 454-9283
(Telephone number, including area code, of agent for service)
COPY TO:
ROBERT J. ZEPFEL, ESQ.
HADDAN & ZEPFEL LLP
4675 MACARTHUR COURT, SUITE 710
NEWPORT BEACH, CA 92660
(949) 752-6100
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to Be Registered Be Registered Offering Price Per Share (1) Aggregate Offering Price (1) Registration Fee
- ---------------- ------------- ---------------------------- ---------------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
without par value 165,108 $ .343 $56,632 $ 15.74
- -------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457, based on the
closing price of the Common Stock, as reported by the OTC Bulletin Board, on February 8, 1999.
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following document filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") by Sionix Corporation (the "Company") is hereby
incorporated by reference in this Registration Statement except as superseded or
modified herein: the Annual Report on Form 10-K for the year ended September 30,
1998, including any amendment or reports filed for the purpose of updating such
description. All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the time a post- effective amendment which
indicates that the securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The holders of Common Stock of the Company are entitled to one vote per
share on each matter submitted to a vote at any meeting of stockholders .Holders
of Common Stock do not have cumulative voting rights, and therefore, a majority
of the outstanding shares voting at a meeting of stockholders are able to elect
the entire Board of Directors, and if they do so, minority stockholders would
not be able to elect any members to the Board of Directors. The Company's bylaws
provide that a majority of the issued and outstanding shares of the Company
constitutes a quorum for stockholders' meetings, except with respect to certain
matters for which a greater percentage quorum is required by statute.
Stockholders of the Company have no preemptive rights to acquire additional
shares of Common Stock or other securities. The Common Stock is not subject to
redemption and carries no subscription or conversion rights. In the event of
liquidation of the Company, the shares of Common Stock are entitled to share
equally in corporate assets after satisfaction of all liabilities and the
payment of any liquidation preferences. Holders of Common Stock are entitled to
receive such dividends as the Board of Directors may from time to time declare
out of funds legally available for the payment of dividends.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 16-10a-903 of the Utah Revised Business Corporation Act
(the "URBCA"), and the Company's Articles of Incorporation, the Company is
required to indemnify a director or officer who is successful, on the merits or
otherwise, in the defense of any proceeding, or in the defense of any claim,
issue, or matter in the proceeding, to which he was a party because he is or was
a director of the
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corporation, against reasonable expenses incurred by him in connection with the
proceeding or claim with respect to which he has been successful. Pursuant to
Section 16-10a-902 and subject to Section 16-10a-906, the Company may indemnify
a director for reasonable expenses incurred in a proceeding. The Company's
Articles of Incorporation contain certain provisions permitted under the Utah
Revised Business Corporation Act, relating to the liability of directors. These
provisions eliminate the liability of a director to the Company or to its
shareholders for monetary damages for any action taken or any failure to take
any action, as a director, except liability for: (a) the amount of a financial
benefit received by a director to which he or she is not entitled; (b) an
intentional infliction of harm on the Company or the shareholders; (c) a
violation of Section 16-10a-842 (regarding unlawful distributions); or (d) an
intentional violation of criminal law. These provisions do not limit or
eliminate the rights of the Company or any shareholder to seek non-monetary
relief, such as an injunction or rescission, in the event of a breach of a
director's fiduciary duty. These provisions do not alter a director's liability
under federal securities laws. The Company's By-laws also contains certain
provisions permitted under the URBCA relating to indemnification of directors
and officers of the Company. In general, these provisions permit the
indemnification of directors and officers in certain circumstances if the person
seeking indemnification acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had not
reasonable cause to believe his or her conduct was unlawful. The provisions also
provide for the reimbursement and/or advancement of expenses to directors and
officers under certain circumstances, which provisions are consistent with the
URBCA. 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, the Company has been informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
3.1 Amended and Restated Articles of Incorporation of the Company.(1)
3.2 Amended and Restated Bylaws of the Company.(1)
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of Jones, Jensen & Company
24.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
(1) Incorporated by reference from Registrant's Registration Statement on Form
S-8, filed with the Commission on July 26, 1996, and incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(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,
represents 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
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act 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 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.
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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, thereunto duly
authorized, in the City of Irvine, State of California, on February 10, 1999.
Sionix Corporation
By: /s/ James J. Houtz
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James J. Houtz, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints James J. Houtz his attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any or all amendments to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully 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 below by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
(1) Principal Executive Officer
/s/ James J. Houtz President and a February 10, 1999
- ----------------------------------- Director
James J. Houtz
(2) Principal Financial and Accounting Officer
/s/ Robert E. McCray Chief Financial Officer February 10, 1999
- ----------------------------------- and a Director
Robert E. McCray
(3) Directors
/s/ Joan C. Horowitz Secretary/Treasurer and a
- ----------------------------------- Director February 10, 1999
Joan C. Horowitz
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
3.1 Amended and Restated Articles of Incorporation of the Company(1)
3.2 Amended and Restated Bylaws of the Company (1)
5.1 Opinion of Haddan & Zepfel LLP
23.1 Consent of Jones, Jensen & Company
24.2 Consent of Haddan & Zepfel LLP (included in Exhibit 5.1)
</TABLE>
(1) Incorporated by reference from Registrant's Registration Statement on Form
S-8, filed with the Commission on July 26, 1996, and incorporated herein by
reference.
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Exhibit 5.1
[LETTERHEAD OF HADDAN & ZEPFEL LLP]
February 10, 1999
Sionix Corporation
9272 Jeronimo Road, Suite 108
Irvine, CA 92618
Dear Sirs:
You have requested our opinion with respect to certain matters in
connection with the filing by Sionix Corporation. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the registration of up to 165,108
shares of the Company's Common Stock, without par value (the "Shares"), for
issuance pursuant to (i) a Consulting Agreement, dated as of August 19, 1998,
with David L. Phillips, and (ii) a Consulting Agreement, dated as of August 19,
1998, with Don Basch (collectively, the "Consulting Agreements"").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Company's Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws, the Consulting Agreements, and
the originals or copies certified to our satisfaction of such records,
documents, certificates, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. We
have assumed the genuineness and authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Shares, when sold and issued in accordance with the
Registration Statement and the Consulting Agreements, will be validly issued,
fully paid, and nonassessable shares of Common Stock of the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Haddan & Zepfel LLP
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Haddan & Zepfel LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 18, 1998, with respect to the
financial statements of Sionix Corporation included in its Annual Report on Form
10-K for the year ended September 30, 1998.
Jones, Jensen & Company
Salt Lake City, Utah
February 1 , 1999
