- Current report filing (8-K)
April 01 2010 - 3:00PM
Edgar (US Regulatory)
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: March 30, 2010
XSUNX,
INC.
(Exact
name of registrant as specified in its charter)
Colorado
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000-29621
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84-1384159
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(State
or other
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(Commission
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(IRS
Employer
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jurisdiction
of
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File
Number)
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Identification
No.)
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incorporation)
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65
Enterprise, Aliso Viejo, CA 92656
(New
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):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement.
On March
30, 2010, XsunX signed a $5 million stock purchase agreement with Lincoln Park
Capital Fund, LLC (“LPC”), an Illinois limited liability
company. Upon signing the agreement, XsunX received $500,000 from LPC
as an initial purchase under the $5 million dollar commitment in exchange for
5,000,000 shares of our common stock. We also entered into a
registration rights agreement with LPC whereby we agreed to file a registration
statement related to the transaction with the U.S. Securities & Exchange
Commission (“SEC”) covering the shares that have been issued or may be issued to
LPC under the purchase agreement. After the SEC has declared
effective the registration statement related to the transaction, we have the
right over a 25-month period to sell our shares of common stock to LPC in
amounts up to $500,000 per sale, depending on certain conditions as set forth in
the purchase agreement, up to the aggregate commitment of $5
million.
There are
no upper limits to the price LPC may pay to purchase our common stock, and the
purchase price of the shares related to the $4.5 million of future funding will
be based on the prevailing market prices of the Company’s shares at the time of
sales without any fixed discount. The Company will control the timing and amount
of any sales of shares to LPC. LPC shall not have the right or the
obligation to purchase any shares of our common stock on any business day that
the price of our common stock is below $0.08.
In
consideration for entering into the $5 million agreement which provides for an
additional $4.5 million of future funding, we issued to LPC 1,250,000 shares of
our common stock as a commitment fee and shall issue an equivalent amount of
shares pro rata as LPC purchases the additional $4.5 million. The common stock
purchase agreement may be terminated by us at any time at our discretion without
any cost to us. Except for a limitation on variable priced
financings, there are no negative covenants, restrictions on future fundings,
penalties or liquidated damages in the agreement. The proceeds
received by the Company under the common stock purchase agreement are expected
to be used in the development of thin film manufacturing equipment and
technologies, general and administrative costs, and general working
capital.
The
foregoing description of the common stock purchase agreement and the
registration rights agreement are qualified in their entirety by reference to
the full text of the common stock purchase agreement and the registration rights
agreement, a copy of each of which is attached hereto as Exhibit 10.1 and 10.2,
respectively, and each of which is incorporated herein in its entirety by
reference.
Item
3.02 Unregistered Sales of Equity
Securities.
The
information contained above in Item 1.01 is hereby incorporated by
reference into this Item 3.02.
Item
9.01
Financial Statements
and Exhibits.
EXHIBIT NO.
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DESCRIPTION
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LOCATION
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10.1
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Common
Stock Purchase Agreement, dated as of March 30, 2010, by and between the
Company and Lincoln Park Capital Fund, LLC.
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Provided
herewith
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10.2
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Registration
Rights Agreement, dated as of March 30, 2010, by and between the Company
and Lincoln Park Capital Fund, LLC.
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Provided
herewith
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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XSUNX,
INC.
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Date:
April 1, 2010
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By:
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/s/
Tom Djokovich
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Tom
Djokovich
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Title:
CEO/Secretary
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