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 5, 2008
(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
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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):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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SECTION
1. Registrant's Business and Operations
Item
1.01 Entry into a Material Definitive Agreement.
On
May
30, 2008 XsunX, Inc. (the “Company”) and MVSystems, Inc. (“MVS), a vendor
previously performing research and technology development services for XsunX
and
from which XsunX had licensed certain patented and patent-pending technologies,
and the MVS principal officer Dr. Arun Madan (“Madan”) entered into a Separation
and Mutual Release Agreement, Non-Exclusive License and Cross License Agreement,
and Sublease Agreement (together, the “Contracts”). The Contracts terminate all
previous agreements and obligations between the parties, releases all claims
related to the previous agreements, provide for the continued licensure of
technologies and patents, terminate all warrants provided by the Company to
MVS
under previous agreements for certain license rights and special services,
and
provides for the sublease of certain portions of the Company’s Golden Colorado
facility to MVS.
The
Separation and Mutual Release Agreement provides for the termination of all
existing agreements between the parties including all warrant grants providing
for the purchase by MVS of up to 14,000,000 shares of the Company’s common stock
with exercise prices ranging from $.15 to $.25 cents. The agreement further
defines the efforts required by MVS to market for sale a first run production
prototype multi-chamber plasma enhanced chemical vapor deposition (“PECVD)
system built for the Company by MVS, and the distribution of the proceeds
between the Company and MVS from the sale of the PECVD system. The agreement
discharges the parties from any further obligations stemming from any previous
agreement between the parties, and with the exception of any claims that might
arise from the performance under the Contracts, releases the parties
and
forever discharges each other from claims related to all previous agreements
between the parties.
The
Non-Exclusive
License and Cross License Agreement provides XsunX a worldwide,
non-exclusive, royalty-free, irrevocable, fully-paid up right and license,
with
the
right to sublicense the following patents and patent application and any
reissues, re-examinations, divisionals, continuations and extensions thereof:
(a)
U.S.
Patent No. 6,488,777 B2; (b) U.S. Patent No. 6,258,408 B1; and (c) U.S. Patent
App. No. 10/905,545 (Pub. No. US 2005/0150542 A1) (together, the “Patents”).
The
license limits XsunX to the use of the Patents for the development
by XsunX of commercial-grade (i.e.,
web
width 30 cms or more and nominal output exceeding 1 megawatt/year based on
1
shift operation) semi-transparent (greater than 5% transparency) and opaque
solar cells, photovoltaic technologies, solar cell panels and methods of
manufacture. The agreement further provides that MVS will continue to be the
exclusive owner of the Patents and grants XsunX exclusive ownership of any
improvements made by XsunX to the licensed Patents.
The
Non-Exclusive
License and Cross License Agreement provides MVS a worldwide,
non-exclusive, royalty-free, irrevocable, fully-paid up right and license,
with
the
right to sublicense the derivative works produced by the parties under the
various phased technology development programs
between
September 17, 2004 and May 30, 2008. The
agreement further provides that XsunX will continue to be the exclusive owner
of
the derivative works and grants MVS exclusive ownership of any improvements
made
by MVS to the licensed derivative works.
The
Company and MVS have also entered into a Sublease Agreement providing for the
sublease by MVS of the rear warehouse and assembly floor area of the Company’s
facilities located in Golden Colorado. The Company will continue to occupy
the
front or office portions of the facility. Under the agreement MVS will pay
for
utilities necessary to operate and demonstrate the PECVD system in its marketing
efforts of the system. Subject to various acceleration clauses contained in
the
sublease, the sublease terminates on or before May 31, 2009.
The
foregoing description of the Contracts is qualified in their entirety by
reference to the full text of the Contracts, copies of which are attached hereto
as Exhibit 10.1 through 10.3, and which are incorporated herein in their
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 Separation and Mutual Release Agreement, dated as of May 30,
2008
by and between the Company and MVSystems, Inc.
C.
Exhibit - 10.2 Non-Exclusive License and Cross License Agreement, dated as
of
May 30, 2008 by and between the Company and MVSystems, Inc.
D.
Exhibit - 10.3 Sublease Agreement, dated as of May 30, 2008 by and between
the
Company and MVSystems, Inc.
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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Date:
June 5, 2008
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XSUNX,
INC.
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By:
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/s/
Tom Djokovich
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Tom
Djokovich, CEO/President
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