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: June 3, 2008
XSUNX,
INC.
(Exact
name of registrant as specified in its charter)
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Colorado
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000-29621
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84-1384159
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(State
or other
jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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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))
SECTION
1. Registrant's Business and Operations
Item
1.01 Entry into a Material Definitive Agreement.
On
December 7, 2007, XsunX, Inc. (the “Company”) filed an action for breach of
contract and declaratory relief in the Superior Court of Orange County,
California, against Wharton Capital Partners, Ltd, Wharton Capital Markets
LLC,
and Capitoline Financial Group LLC. The XsunX Action was brought to seek a
court
determination that the Company did not owe any fees to the above defendants
by
reason of a $21 million dollar financing transaction with Fusion Capital Fund
II, LLC (“Fusion”). In on or about February 2008 the XsunX Action was removed to
the U.S. District Court for the Southern District of New York.
On
January 3, 2008, Wharton Capital Partners, Ltd, and Wharton Capital Markets
LLC,
(“Wharton”) filed an action in the U.S. District Court for the Southern District
of New York against the Company pursuant to which Wharton sought fees in an
amount equal to seven percent (7%) of the gross proceeds received by the Company
under a financing agreement between Fusion Capital Fund II, LLC and the Company.
On
May
30, 2008 XsunX and Wharton entered into a Settlement Agreement. Under the
Settlement Agreement XsunX has agreed to provide Wharton with eight hundred
and
seventy five thousand (875,000) shares of its common stock. Subject to the
fulfillment of the requirements of Rule 144 of the Securities Act of 1933,
Wharton has agreed not to sell or transfer no more than two hundred and fifty
thousand (250,000) shares monthly. The Company has also agreed to a one hundred
thousand dollar ($100,000) cash payment to be paid in four (4) monthly
installments of $25,000 each.
Within
five business days after XsunX has made the final payment to Wharton, the
parties will file a joint motion, pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(ii), to dismiss both the New York Action and the California Action
with prejudice. Each
of
the parties has unconditionally and irrevocably released, waived, and forever
discharged each other from claims related to the XsunX Action and the Wharton
Action.
The
foregoing description of the Settlement Agreement is qualified in its entirety
by reference to the full text of the Settlement Agreement, a copy of which
is
attached hereto as Exhibit 10.1, and which is incorporated herein in its
entirety by reference.
SECTION
2. Financial Information
None.
SECTION
3. Securities and Trading Markets
None.
SECTION
4. Matters Related to Accountants and Financial
Statements
None.
SECTION
5. Corporate Governance and Management
None.
SECTION
6. Asset-Backed Securities
None.
SECTION
7 - Regulation FD
None.
SECTION
8. Other Events
None.
SECTION
9. Financial Statements and Exhibits
Item
9.01 Financial Statements and Exhibits.
The
following exhibit(s) is furnished as part of this report:
A.
Financial Statements - None
B.
Exhibit - 10.1 Settlement Agreement, dated as of May 30, 2008 by and between
the
Company and Wharton.
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.
Date:
June 3, 2008
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XSUNX,
INC.
By:
/s/ Tom
Djokovich
Tom Djokovich, CEO/President
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