WAIVER AND AMENDMENT AGREEMENT
Exhibit
10
THIS WAIVER AND AMENDMENT AGREEMENT
(this “Agreement”),
dated as of August 13, 2009, is made and entered into by and among Sionix
Corporation, a Nevada corporation (“Sionix”), and all of the current and past
holders of the Secured Convertible Promissory Notes of Sionix (the “Holders”),
with reference to the following:
RECITALS
WHEREAS, the Holders
constitute all of the current and past holders of the Secured Convertible
Promissory Notes of Sionix issued from October 2006 through February 2007 in the
aggregate principal amount of $750,000 (each, a “Note”, collectively, the
“Notes”), which were initially convertible, until the respective maturity dates
of the Notes, into shares of common stock of Sionix (“Common Stock”) at a price
of $0.05 per share, which price was subsequently adjusted to $0.04 per share
(the “Note Conversion Price”) pursuant to Section 1(f) of the
Notes;
WHEREAS, Section 1(b) of the
Notes contains a provision requiring a reduction of the Note Conversion Price in
the event of certain Dilutive Issuances (as defined in the Notes);
WHEREAS, on June 6, 2007,
Sionix issued convertible promissory notes in the aggregate principal amount of
$86,000 which, upon the satisfaction of certain conditions, could be converted
into Common Stock at a conversion price of $0.01 per share (the “Xxxxx
Notes”);
WHEREAS, absent a waiver
pursuant to Section 1(b)(vi) of the Notes, the issuance of the Xxxxx Notes would
constitute a Dilutive Issuance within the meaning of the Notes, thereby
triggering a reduction of the Note Conversion Price from $0.04 to $0.01 per
share;
WHEREAS, the Holders are
agreeing to waive all Note Conversion Price adjustments that occurred or should
have occurred as a result of the issuance of the Xxxxx Notes in consideration of
Sionix agreeing to extend the convertibility of each Note until such time as the
Note is or was paid in full;
NOW, THEREFORE, in
consideration of the premises set forth above and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Holders hereby agree as follows:
Section
1. Waiver of
Conversion Price Adjustments. The Holders hereby forever
waive, as of and after the respective issuance dates of the Notes, any reduction
of the Conversion Price that would have or should have occurred as a result of
the issuance of the Xxxxx Notes. Accordingly, pursuant to Section
1(b)(vi) of the Notes, the Holders hereby agree that the issuance of the Xxxxx
Notes is exempt from the anti-dilution adjustment provisions of Section 1(b) of
the Notes, and that the Xxxxx Notes do not constitute Additional Shares of
Common Stock (as defined in the Notes).
Section
2. Waiver of
Event of Default. The Holders hereby forever waive the
occurrence of an Event of Default (as defined in the Notes) occurring as a
result of Sionix’ failure to notify the Holders of a Conversion Price adjustment
as required by Section 1(g) of the Notes and hereby waive all remedies
associated with such event.
Section
3. Amendment. The
phrase “At any time prior to the Maturity Date” appearing at the beginning of
Section 1(a) of the Notes is hereby amended and replaced with the following
phrase: “At any time prior to repayment of this Note in
full”.
Section
4. Acknowledgment. Each
Holder acknowledges and agrees that (i) by executing this Agreement, the Holder
is relinquishing material anti-dilution rights under the Notes; and (ii) the
Holder has consulted, or had the opportunity to consult, the Holder’s legal
counsel and financial advisor(s) in connection with the execution of this
Agreement.
Section
5. Accredited
Investor. Each Holder represents and warrants to Sionix that
the Holder is an accredited
investor within the meaning of Rule 501 of Regulation D under the
Securities Act of 1933, as amended.
Section
6. Further
Action. The Holders agree to take such further action and
execute such additional agreements, instruments or documents as Sionix may
reasonably request from time to time in order to fully execute the purposes of
this Agreement.
Section
7. Recitals
Incorporated. The Recitals of this Agreement are incorporated
herein and made a part hereof.
Section
8. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument, binding on all parties hereto. If a copy or counterpart
of this Agreement is originally executed and such copy or counterpart is
thereafter transmitted electronically by facsimile or email of a PDF file, such
facsimile or emailed PDF document shall for all purposes be treated as if
manually signed by the party whose signature appears.
IN WITNESS WHEREOF, the
undersigned has executed and delivered this Waiver and Amendment Agreement as of
the date first written above.
|
Sionix
Corporation
|
|
|
By:
______________________________
|
|
|
Name:
Xxxxxx Xxxxxxxx
|
|
|
Title:
Chief Executive Officer
|
[HOLDERS’
SIGNATURE PAGES FOLLOW]
[HOLDER’S
SIGNATURE PAGE TO WAIVER AND AMENDMENT AGREEMENT]
IN WITNESS WHEREOF, the
undersigned Holder has executed and delivered this Waiver and Amendment
Agreement as of the date first set forth above.
|
Name
of Holder:
|
|
|
_______________________________
|
|
|
Signature:
_________________________________
|
|
|
Name
of signatory if holder is an entity:
_____________________
|
|
|
Title
of signatory if holder is an entity:
______________________
|
