SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XSUNX, INC.
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(Exact name of registrant as specified in its charter)
SUN RIVER MINING, INC.
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(former name of registrant)
Colorado 84-1384159
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(State of Jurisdiction of (I. R. S. Employer
Incorporation or Organization) Identification Number)
65 ENTERPRISE, ALISO VIEJO, CA 92656
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(Address and Zip Code of principal executive offices)
XSUNX, INC.
Employee Stock Compensation Plan
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(Full title of plan)
TOM DJOKOVICH
PRESIDENT
65 ENTERPRISE
ALISO VIEJO, CA 92656
949-330-8060
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(Name, address and telephone number, including area code, of agent for service)
Copies of all communications, including all communications sent to the agent for
service, should be sent to:
Michael A. Littman
Attorney at Law
7609 Ralston Road
Arvada, CO 80002
(303) 422-8127
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities to be Registered Maximum Maximum Registration Fee
Offering Price Aggregate
Per Share* Offering Price**
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Common Stock 115,000 .41 $47,150 $100
($0.01 par value)
* Estimated pursuant to rule 457(c)
** Includes awards that may be granted pursuant to the foregoing plans.
PART I
INFORMATION REQUIRED IN SECTION 10(a) OF PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information required by Part I of Form S-8
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not required to be and are not filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the document incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement, any of the other
documents required to be delivered to Plan participants pursuant to Rule 428(b),
and any additional information about the Plan and its administrators are
available without charge by contacting:
XSUNX, INC.
TOM DJOKOVICH
PRESIDENT
65 ENTERPRISE
ALISO VIEJO, CA 92656
949-330-8060
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Company
for purposes of the information reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by
reference:
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1. The Company's Quarterly Report on Form 10-QSB for the three months
ended June 30, 2004;
2. The Company's Quarterly Report on Form 10-QSB for the three months
ended March 31, 2004;
3. The Company's Quarterly Report on Form 10-QSB for the three months
ended December 31, 2004;
4. The Company's Annual Report on Form 10-KSB for the year ended September
30, 2003;
5. The Company's Report on Form 8-K filed with the Commission on or about
November 3, 2004;
6. The Company's Report on Form 8-K filed with the Commission on or about
October 1, 2004;
7. The Company's Report on Form 8-K filed with the Commission on or about
August 31, 2004;
8. The Company's Report on Form 8-K filed with the Commission on or about
February 25, 2004;
9. The Company's Report on Form 8-K filed with the Commission on or about
October 2, 2003;
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
herein by reference will be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part thereof.
ITEM 4. DESCRIPTION OF SECURITIES
Incorporated by reference to Form 10SB12G for the Company filed February
18, 2000, and subsequent amendments thereto.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's By-Laws authorize the Company to indemnify any present or
former director, officer, employee, or agent of the Company, or a person serving
in a similar post in another organization at the request of the Company, against
expenses, judgments, fines, and amounts paid in settlement incurred by him in
connection with any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, to the
fullest extent not prohibited by the Colorado Business Corporation Act, public
policy or other applicable law. Section 7-109-102 of the Colorado Business
Corporation Act authorizes a corporation to indemnify its directors, officers,
employees, or agents in terms sufficiently broad to permit such indemnification
under certain circumstances for liabilities (including provisions permitting
advances for expenses incurred) arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. CONSULTANTS AND ADVISORS
The following consultants/professionals/employees will be issued securities
pursuant to this Registration Statement:
Name Number Type of Services Provided
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Randy A. McCall 50,000 Employee/Consultant/Service Provider
Steven R. Davis 40,000 Employee/Consultant/Service Provider
Joe Wojcik 15,000 Employee/Consultant/Service Provider
Sam Del Cielo 10,000 Employee/Consultant/Service Provider
The balance, of shares registered hereunder will be issued for back salary
compensation for employees (not current officers) or for back (accrued) services
of consultants of the Company.
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ITEM 9. EXHIBITS
Exhibit No. Title
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4.1 Employee Stock Compensation Plan
5.1 Opinion of Michael Littman, Esq.
23.1 Consent of Michael B. Johnson & Company, CPA
23.2 Consent of Michael Littman, Esq.
24.1 Power of Attorney
ITEM 10. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to;
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) include any additional or changed material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) or the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any act ion, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement, to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Aliso Viejo, State of California on the 23rd day of
December, 2004.
XSUNX, INC.
/s/ Tom Djokovich
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Tom Djokovich
President
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