- Current report filing (8-K)
August 28 2009 - 4:19PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported):
August 27,
2009
XSUNX,
INC.
(Exact
name of registrant as specified in its charter)
Colorado
|
000-29621
|
84-1384159
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification
No.)
|
65 Enterprise, Aliso Viejo,
CA 92656
(Address
of principal executive offices) (Zip Code)
Registrant's
telephone number, including area code:
(949)
330-8060
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General Instruction A.2. below):
r
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
r
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
r
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR240.14d-2(b))
|
r
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR240.13e-4(c))
|
Item
1.01 Entry
into a Material Definitive Agreement.
In
furtherance of its revised plan of operations focusing on the development of new
manufacturing technology for CIGS thin films and plans to establish
manufacturing operations through joint venture license agreements for such new
technology, XsunX, Inc., a Colorado corporation (the “
Company
”), has
elected to eliminate its Oregon based facility. On August 27, 2009,
the Company entered into a lease termination and mutual release of claims (the
“
Agreement
”)
with Merix Corporation, an Oregon corporation (“
Merix
”, and together
with the Company, the “
Parties
”). Pursuant
to the terms of the Agreement, the Parties agreed to terminate that certain
sublease agreement (the “
Sublease
”) by and
between the Parties, dated April 1, 2008, related to certain real property
described therein which comprised the Company’s Oregon based facility (the
“
Premises
”).
Accordingly, the Company agreed to vacate the Premises on or before September 1,
2009. In connection with the termination of the Sublease, the Company also
agreed (a) to sell certain equipment, currently housed on the Premises, to Merix
as set forth in the Agreement, (b) to allow Merix to complete a full drawdown of
that certain $106,000 irrevocable letter of credit issued by Wells Fargo Bank,
N.A., at the request of the Company, in favor of Merix and (c) to issue a
promissory note (the “
Promissory Note
”) in
favor of Merix in the amount of $456,920.66. Pursuant to the terms of the
Agreement, the Parties agreed to unconditionally release each other from the
obligations imposed by, or related to, the Sublease, except for the obligations
established by the Agreement. The termination of the Sublease
eliminates continued monthly operating costs associated with the facility, which
the Company no longer requires for its plan of operations, while also reducing
the Company’s short-term liabilities associated with the lease to zero and
reducing the Company’s long-term liabilities by approximately sixty-five percent
(65%). Copies of the Agreement and the Promissory Note are hereby incorporated
by reference and attached hereto as
Exhibits 99.1
and
99.2
,
respectively.
Item
1.02 Termination
of a Material Definitive Agreement.
See Item 1.01 herein
above.
Item
2.03 Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
SheetArrangement of a Registrant.
See Item 1.01 herein
above.
Item
9.01 Financial
Statements and Exhibits.
(a) Not
applicable.
(b) Not
applicable.
(c) Not
applicable.
(d)
Exhibits
.
|
|
|
99.1
|
Lease
Termination and Mutual Release of Claims, dated August 27, 2009 between
the Company and Merix Corporation
|
Provided
herewith
|
99.2
|
Promissory
Note in the amount of $456,920.66, dated August 27, 2009 between the
Company and Merix Corporation
|
Provided
herewith
|
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the Company has duly caused this report to be
signed on its behalf by the undersigned thereunto duly authorized.
Date:
August 28, 2009
|
XSUNX,
INC.
|
|
By:
/s/
Tom
Djokovich
|
|
Name:
Tom Djokovich
Title:
Chief Executive
Officer/Secretary
|
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