CONSULTING
AND ADVISORY AGREEMENT




THIS CONSULTING AGREEMENT
(“Agreement”), made effective as of the 9th day of March 2009, is entered into
by and between Xsunx, Inc., a Colorado corporation ("Company"), and Orion
Business Services, LLC, 10651 West 34th Place,
Wheat Ridge, CO 80033 ("Consultant"). The Company and Consultant are sometimes
herein referred to individually as a “party” and collectively as the
“Parties”.





RECITALS





WHEREAS, Consultant has
developed an expertise in the areas of strategic financial and accounting
services similar to those of a Chief Financial Officer as well as maintenance of
the Company’s books and records and financial regulatory compliance which
is of interest to the Company;





WHEREAS, the Company desires
to obtain the services of Consultant and Consultant desires to provide the
Company with consultancy and advisory services as contemplated pursuant to the
terms and conditions contained herein; and





WHEREAS, the undersigned
Parties desire to formalize such consultancy relationship;





NOW, THEREFORE, in
consideration of the promises, mutual covenants and agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties to this Agreement agree as
follows:





1.       
     Definitions





1.1           “XsunX
Field of Use” means the business of developing, manufacturing, and marketing
semi-transparent and opaque solar cells and photovoltaic technologies, solar
cell panels, and methods of manufacture.





1.2           “Business
of XsunX” means the business of developing and commercializing semi-transparent
and opaque solar cells and photovoltaic technologies, solar cell panels, and
methods of manufacture.





2.         
   Engagement of
Services.  The Company hereby engages Consultant as an
independent contractor to provide consulting and advisory services as set forth
herein.  All such consulting and services shall be performed in
accordance with the terms and conditions contained herein. Consultant shall
report to the Chief Executive Officer, or in their absence, the Board of
Directors of the Company. Consultant hereby accepts such engagement in
accordance with such terms and conditions.









3.   
         Services of Consultant.
Consultant shall, in its sole discretion, provide consultancy and advisory
services and shall remain an independent contractor. Attached hereto as Exhibit
“A”, and incorporated herein by reference, is a service request form specifying
the initial scope of work to be rendered by Consultant. The Company may, but is
not obligated to, provide additional project and/or service requests to
Consultant. Any subsequent service request will be governed by this Agreement.
Consultant shall provide such services incident thereto as may be necessary from
time to time which services shall include, without limitation, providing the
Company with his best efforts and technical expertise in advising the Company in
the areas of strategic financial and accounting services similar to those of a
Chief Financial Officer as well as maintenance of the Company’s books and
records and financial regulatory compliance which is of interest to the
Company.




3.1.          Consultant
shall provide such other related services as may be requested of Consultant by
the Company and as are not inconsistent with the provisions of this
Agreement.  Consultant agrees to devote Consultant’s best efforts,
skills, and technical expertise to the business of the Company, to do
Consultant’s utmost to further enhance and develop the interests and welfare of
the Company, and to devote necessary time and attention to the business of the
Company, while recognizing Consultant’s duties to its other professional
responsibilities.





3.2.        
Consultant shall truthfully and accurately make, maintain and preserve all
records and reports that the Company may, from time to time, request or require,
and shall fully account for all money, records, equipment, materials or other
property belonging to the Company of which Consultant may have custody and shall
pay over and deliver same promptly whenever and however Consultant may be
directed to do so.





3.3.         Consultant
shall make available to the Company any and all information of which Consultant
has knowledge that is relevant to the Company's business, but is not otherwise
prohibited from disclosing, and make all suggestions and recommendations which
Consultant believes will be of benefit to the Company.





3.4.         Consultant
shall, at his own cost, prepare for such meetings as may be reasonably requested
by the Company, provided, however, that the Company shall pay for the reasonable
travel and lodging costs incurred by Consultant in regard to the
foregoing.  The Company may request at least one meeting per calendar
month for the purpose of discussion of the development matters referenced
hereinabove, and the conformance or variance of the foregoing to or with the
Business of XsunX.





4.           
Duty to Other
Parties.  The parties recognize that Consultant may provide
consultancy or be employed by other parties, and that as such, Consultant may
devote time and effort to the business of other
parties.  Notwithstanding the same, Consultant shall conform
Consultants’ conduct to the fiduciary duties of confidentiality and loyalty owed
to the Company.  In that regard, Consultant shall inform the Company
at the earliest opportunity at such time as Consultant may perceive a potential
conflict of interest with regard to Consultant’s duties to other parties and
Consultant’s duties to the Company.  Consultant shall not make any
unauthorized disclosure of the confidential information of other parties to the
Company. Consultant shall not make any unauthorized disclosure of the
confidential information of the Company to other parties (or any other party not
permitted to receive such information).




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5.           Compensation.  For
and in consideration of the performance by Consultant of the services, terms,
conditions, covenants and promises herein recited, the Company agrees and
promises to pay to Consultant at the times and in the manner herein stated and
as set forth below:





5.2.        Consultant
shall be entitled to the “Base Compensation” of $10,000.00 Dollars
per month.





5.2.        Consultant
shall bill the Company weekly for services rendered based on work product
provided or delivered as a result of Company authorized projects or service
requests. Except as otherwise set forth herein, the payment of invoices shall
constitute the sole compensation of Consultant hereunder.




5.3.       
The Company shall reimburse Consultant, from time to time, upon Consultant's
submission of expense account and supporting documents as required by the
Internal Revenue Service, for all reasonable out of town travel, entertainment,
long distance telephone charges, mailing, and other ordinary, reasonable and
necessary business expenses incurred by Consultant as part of and in connection
with the direct performance of duties specified herein.





6.           
Relationship of the Parties





6.1          Legal
Status.  Consultant shall be an independent contractor of the Company
in accordance with the provisions of Sections 2750.5 and 3353 of the California
Labor Code, or any other corresponding provision of the Colorado Statutes, and
not an employee, agent, or partner.  It is expressly declared that
such independent contractor status is bona fide and not a subterfuge to avoid
employee status.  This Agreement shall not create an employer-employee
relationship and shall not constitute a hiring of such nature by either
party.





6.2.         
Items Furnished to Consultant.  Unless expressly agreed in writing
otherwise by the parties, the Company shall not provide any telephone equipment
or services, office equipment, stationery, secretarial or office support
services or other items or services for the benefit of
Consultant.  Consultant shall, at its own expense, provide and make
arrangement for all equipment, stationery, secretarial and office support
services.  Through the period of the lease for 500 Corporate Circle,
Suite J, Golden, Colorado 80401, the Consultant shall use those office
facilities and equipment.




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6.3.        Consent
of Company.  Consultant shall have no right or authority at any time
to make any contract or binding promise of any nature on behalf of the Company,
whether oral or written, without the express prior written consent of the
Company.





6.4.         Manner
of Performing Services.  Consultant shall retain all discretion and
judgment in regard to the manner and means of carrying out its duties hereunder
subject, however, to the reasonable requests of the
Company.  Consultant shall have the right to control and discretion as
to the manner of performance of its services hereunder in that the result of the
work and not the means by which it is accomplished shall be the primary factor
for which the parties have bargained hereunder in accordance with Sections
2750.5 and 3353 of the California Labor Code or any corresponding provision in
the Colorado Statutes.  Consultant's obligations for performance of
services hereunder shall be limited to the completion of the consultation and
services described above in accordance with the Business of XsunX and the XsunX
Field of Use.  Consultant shall have no obligation to work any
particular hours or days or any particular number of hours or days. The Company
shall have no right to control or direct the details, manner or means by which
Consultant accomplishes the results of the services performed
hereunder.





6.5.         Payment
of Taxes.Consultant shall be
responsible for and pay Consultant's own employment taxes, estimated tax
liabilities, business equipment or personal property taxes and other similar
obligations, whether federal, state or local. The Company shall not pay or
withhold any FICA, SDI, federal or state income tax or unemployment insurance or
tax or any other amounts because the relationship of the parties hereto is not
that of employer-employee, but that of independent
contractor.  Consultant shall be solely responsible for the payment of
all taxes, withholdings and other amounts due in regard to Consultant's own
employees.





6.6.         Employees
of Consultant.  Consultant may subcontract with and/or employ such
parties upon such terms and conditions as it may deem proper or
necessary.





7.           
Warranties and Indemnification





7.1.         Warranties.  Consultant
warrants and represents that the services of Consultant's subcontractors or
employees shall be performed in full compliance with the terms and conditions of
this Agreement, and, that all services performed hereunder shall be performed in
accordance with all federal, state and local laws, rules or
regulations.





7.2.        
Indemnification by Consultant.  Consultant shall indemnify, defend and
hold the Company and the property of the Company, free and harmless from any and
all claims, losses, damages, injuries, and liabilities, including the Company's
reasonable attorney fees and costs (the Company may choose its own counsel when
defended hereunder), arising from or in any way connected with the performance
of services under this Agreement or any other act or omission by Consultant, its
agents, subcontractors, or employees.




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7.3.         Indemnification
by the Company.  The Company shall indemnify, defend and hold
Consultant and the property of Consultant, free and harmless from any and all
claims, losses, damages, injuries, and liabilities, including Consultant's
reasonable attorney fees and costs, arising from or in any way connected with
any act or omission on the part of the Company, its constituent partners,
agents, subcontractors, or employees.





8.           
Term.  Consultant's
engagement pursuant to this Agreement shall be month to month and project based
and shall commence upon the date of execution hereof (the "Commencement
Date").





9.            Termination.  Notwithstanding
any other provision of this Agreement to the contrary, either party may
terminate this Agreement at any time upon ten (10) days prior written notice to
the other. This Agreement may also be terminated by the Company, at its option,
at any time during the term of this Agreement without notice, for good
cause.  Termination for good cause shall include, but not be limited
to, any of the following:





9.1. 
        The commission by Consultant or
the Company or the officers of the Company of an act of fraud or other act
materially evidencing bad faith or dishonesty;





9.2.          The
misappropriation by Consultant of any funds or property or other rights of the
Company;





9.3.          The
suspension or removal or termination of Consultant by or at the request or
requirement of any governmental authority having jurisdiction over the
Company;





9.4.          The
breach by Consultant of any material terms of this Agreement or any other
agreement between Consultant on the one hand and the Company, or any affiliate
of the Company, on the other hand, including, but not limited to, the Technology
Agreement;





9.5.       
  Upon the death of the Consultant.




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10.          Confidentiality.  All
information derived or provided to Consultant under the terms and specific to
the performance of this Agreement, including lists and databases, and any part
of such lists, databases, or information, pertaining to customers,
merchants,  salespersons, financial records, computer software
programs, strategic plans, contracts, agreements, literature, manuals,
brochures, books, records, correspondence, computer programs, software, source
codes, computations, data files, algorithms, techniques, processes, designs,
specifications, drawings, charts, plans, schematics, computer disks, magnetic
tapes, books, files, records, reports, documents, Instruments, agreements,
contracts, correspondence, letters, memoranda, financial, accounting, sales,
purchase and consultant data, capital structure information, corporate
organizational information, identities, names and address of, and any
information pertaining to, shareholders, directors, officers, consultants,
contractors, vendors, suppliers, customers, clients, lenders, financing and
business participants, and all persons associated with the Company, information
pertaining to business models, business plans, projections, assumptions and
analyses, particular projects, and all other data and information and similar
items relating to the business of the Company and all other data and information
and similar items relating to the Company of whatever kind or nature and whether
or not prepared or compiled by the Company and all other materials furnished or
made available to Consultant by the Company or any of its affiliates (as
hereinafter defined) relating to the business conducted by the Company
("Confidential Information"), is and are proprietary and confidential and are
and shall remain the sole property of the Company.  Affiliate as used
in this section shall mean the Company, any entity in which Company owns a
majority ownership (directly or indirectly), or any entity which owns a majority
ownership of Company (directly or indirectly). Consultant acknowledges that the
Confidential Information derives independent economic value, actual or
potential, from not being generally known to the public or to other persons who
can obtain economic value from its disclosure or use and that this
confidentiality provision constitutes efforts that are reasonable under the
circumstances to maintain the secrecy thereof.  Consultant further
acknowledges that the Confidential Information constitutes trade secrets
pursuant to California Civil Code §3426.1.   Consultant shall
not, directly or indirectly, at any time during or after termination of
consultant use or reveal, divulge, disclose, disseminate, distribute, license,
sell, transfer, assign or otherwise make known, directly or indirectly, the
Confidential Information to any person or entity not expressly authorized by the
Company to receive such Confidential Information.




10.1        Consultant
shall exercise the highest degree of care and discretion in accordance with the
duty of Consultant hereunder to prevent improper use or disclosure of the
Confidential Information and will retain all such Confidential Information in
trust in a fiduciary capacity unless: (i) such use or disclosure has been
authorized in writing by the Company through an officer or director, or (ii) is
required to be disclosed by law, a court of competent jurisdiction or a
governmental or regulatory agency.  Further, Consultant shall return
and deliver all such materials, including all copies, remnants, or derivatives
thereof to the Company upon the termination of consultant with the Company or at
any other time upon request by the Company.





11.         Patents and Inventions. 
Any interest in patents, patent applications, inventions, technological
innovations, copyrights, copyrightable works, developments, discoveries,
designs, and processes ("Inventions") which Consultant hereafter during the
period Consultant is retained by the Company under this Agreement or
otherwise and for three (3) years thereafter may own, conceive of, or develop
shall belong to the Company to the extent that the same: (1) relate at the time
of conception or reduction to practice of the invention to the Company's
business, or actual or demonstrably anticipated research or development of the
Company; (2) result from any work performed by Consultant for the Company; or
(3) have otherwise been developed by Consultant using the Company's equipment,
supplies, facilities, or trade secret information.  As soon as Consultant
owns, conceives of, or develops any such Invention, Consultant agrees
immediately to communicate such fact in writing to the Secretary of the Company,
and without further compensation, but at the Company's expense, immediately
upon request of the Company, Consultant shall execute all such assignments and
other documents (including applications for patents, copyrights, trademarks, and
assignments thereof) and perform any and all acts as the Company may
reasonably request in order (a) to vest in the Company all Consultant's right,
title, and interest in and to such Inventions, free and clear of liens,
mortgages, security interests, pledges, charges, and encumbrances arising from
the acts of Consultant and (b), if patentable or copyrightable, to obtain
patents or copyrights (including extensions and renewals) therefore in any and
all countries in such name as the Company shall determine.  Notwithstanding
the foregoing, pursuant to Section 2872 of the California Labor Code, this
Agreement shall not apply to any Invention which qualifies fully under the
provisions of Section 2870 of the California Labor Code.  Consultant
acknowledges receipt of a copy of 2870 of the California Labor
Code.




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11.1        Derivative
Works.  All derivative works of the parties resulting from research or
work funded by, or Confidential Information provided by, the Company associated
with any subsequent research by any party, development, or combination of
technologies of the parties after the Commencement Date, which are useful or
specific to the XsunX Field of Use or the Business of XsunX, shall become the
property of the Company.





12.           Assignment.  The
obligations of Consultant under this Agreement are unique and may not be
assigned.





13.           Amendments.  This
Agreement may be amended only in writing executed by Consultant and Company and
approved in writing by the majority vote of the Board of Directors of the
Company.





14.           Effect of
Headings.  The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of its
provisions.





15.           Parties in
Interest.  Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Contract, nor shall any provision give any third person any right of subrogation
or action over against any party to this Agreement.





16.           Recovery of Litigation
Costs.   If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover as an element of their damages, reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other relief to which they may be entitled.




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17.           Gender;
Number.  Whenever the context of this Contract requires, the
masculine gender includes the feminine or neuter gender, and the singular number
includes the plural.





18.           Time of
Essence.  Time shall be of the essence in all things pertaining
to the performance of this Agreement unless waived in writing by the undersigned
parties.





19.           Authority.  The
parties to this Agreement warrant and represent that they have the power and
authority to enter into this Agreement in the names, titles and capacitates
herein stated and on behalf of any entities, persons or firms represented or
purported to be represented by each respective party.





20.           Waiver.  A Waiver by
either party of any of the terms and conditions of this Agreement in any
instance shall not be deemed or construed to a waiver of such terms of condition
for the future, or of any subsequent breach thereof, or of any other term and
condition of this Agreement.  All waivers must be made in writing
executed by the waiving party.





21.           Entire
Agreement.  This Agreement constitutes the entire agreement
between the parties respecting the subject matter hereof, and there are no other
representations, warranties, agreements or commitments between the parties
hereto except as set forth herein.  This Agreement cancels and shall
supersede and control any previous agreements between the Parties. This
Agreement shall control over any and all provisions or guidelines contained in
any Consultant Manual, Consultant Handbook, Company Policy Manual or other
similar document.  Consultant expressly acknowledges that no
Consultant Manual, Consultant Handbook, Company Policy Manual or other similar
document is or shall become a contract between the Company and
Consultant.




22.           Notices.  Any
notice, request, demand or other communication permitted to be given hereunder
shall be in writing and shall be deemed to be duly given when personally
delivered to an Consultant officer of the Company or to Consultant, as the case
may be, or when deposited in the United States mail, by certified or registered
mail, return receipt requested, postage prepaid, at the respective addresses of
the Company and Consultant as shown on the signature page
hereto.  Either party may change by notice the address to which
notices are to be sent.




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23.           Severability. If any provision
of this Agreement shall, for any reason, be held unenforceable, such provision
shall be severed from the contract.  The invalidity of such specific
provision, however, shall not affect the enforceability of any other provision
herein, and the remaining provision shall remain in full force and
effect.





24.           Choice of Law and
Venue.  This Agreement shall, to the fullest extent allowed by
law, be construed, interpreted and enforced in accordance with the laws of the
State of Colorado, without regard to or application of conflict of law rules,
and the venue in regard to any disputes arising hereunder shall, to the fullest
extent allowed by law, be in Orange County, California.





27.           Press Releases.  Any
press release, company disclosures and advertisement made by the Company
relating to Consultant shall be subject to the approval of Consultant prior to
public release. Consultant will not unreasonably withhold such approval and
agrees to respond to such requests for approval within two (2) business
days.





IN WITNESS WHEREOF, this
Agreement is made effective by Consultant and the Company on the date set first
forth above.





COMPANY:
                
                CONSULTANT:Xsunx,
      Inc.,
                
                Orion
      Business Services, LLCa
      Colorado corporationBy:
                
                
                By:Tom
      M. Djokovich, as CEO
                
                Jeff
      Huitt, as Member


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“EXIBIT
A”


The
contract CFO is responsible for the finance and accounting operations of an
organization, including financial reporting, and compliance with accepted
finance and accounting standards and regulatory requirements.


The
possible duties of the contract CFO may include:


·
            Participating
      in the organization's strategic business and financial planning
      processes


·
            Setting
      financial goals in support of business operations and strategic
      directions


·
            Planning
      and managing the finances of the entire
  organization


·
            Managing
      securities and cash portfolios, other liquid assets, and
    debt


·
            Assisting
      in obtaining financing for major initiatives or
    acquisitions


·
            Providing
      financial due-diligence for any merger and acquisition
      activities


·
            Managing
      business and financial operations


·
            Researching
      and staying abreast of the latest regulatory
  trends


·
            Researching
      and staying abreast of the latest financial accounting reporting
      trends


·
            Monitoring
      financial processes, policies, systems and
  personnel


·
            Assuring
      compliance with accepted financial accounting
  standards


·
            Assuring
      compliance with the recently enacted Sarbanes-Oxley legislation and other
      SEC regulations, in public
companies


·
            Reporting
      on the financial well-being of their organization to the CEO, board of
      directors, stock holders, and regulatory bodies such as the Securities and
      Exchange Commission (SEC)


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