Exhibit 10.6


 


EXCHANGE
AGREEMENT 


This
EXCHANGE AGREEMENT (“Agreement”), dated as of September 30, 2012 is entered into by and between XSUNX,
INC., a Colorado corporation having its principal address at 65 Enterprise, Aliso Viejo, CA 92656 (the
“Company”), and __________________, having an address at ________________________ (the
“Holder”). 


W
I T N E S S E T H:


WHEREAS,
the Holder is the holder of that certain Promissory Note (“Original Note”)
issued by the Company to Viasystems Corporation, formerly known as Merix Corporation (“Original Holder”),
on or about August 27, 2009 in the original principal amount of $456,920.66;


WHEREAS,
pursuant to that certain Securities Purchase Agreement dated as of March 30, 2011 between the Holder and the Original Holder,
the Original Holder sold, assigned and conveyed all of its right, title and interest in and to the Original Note to the Holder;


WHEREAS,
pursuant to that certain Exchange Agreement dated as of November 3, 2011 between the Company and the Holder (“2011 Exchange
Agreement”), the Company and the Holder exchanged the Original Note solely for securities consisting of (i) a 10% Promissory
Note due on September 30, 2012 (“10% Note”), and (ii) 7,000,000 shares of common stock of the Company, no par
value (“Common Stock”); and


WHEREAS,
now the Company and the Holder desire to exchange the 10% Note solely for securities consisting of (i) a 12% Promissory Note (“Exchange
Note”) in the form of Exhibit A attached hereto, and (ii) 500,000 shares (“Shares”) of Common Stock;


NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:


 


1.     
Acknowledgement. The Company acknowledges and agrees that (a) no consent of the Company is or was required in connection
with the transfer and assignment of the Original Note from the Original Holder to the Holder, (b) the Holder is currently the
record holder of all right, title and interest in and to the 10% Note, and (c) the outstanding balance under the 10% Note due
to the Holder as of the date hereof is equal to $385,863.00.


2.     
Exchange of 10% Note. In exchange for the surrender and cancellation of the 10% Note, the Company shall issue to
the Holder, and the Holder shall accept from the Company (a) the Exchange Note dated as of the date hereof with a principal amount
equal to $385,863.00, and (b) the Shares. The Exchange Note is being issued in substitution for part of, and not in satisfaction
of, the 10% Note. As soon as reasonably practicable following the execution hereof, the Company shall deliver to the Holder the
original Exchange Note and a stock certificate evidencing the Shares, and upon the Holder’s receipt thereof it shall promptly
surrender and return the 10% Note to the Company.



     

     

    

 


3.     
Representations and Warranties. The Company hereby makes the following representations and warranties to the Holder:


a.      
 Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and
to consummate the transactions contemplated by this Agreement and the Exchange Note and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and the Exchange Note by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company, its board of directors or its stockholders in connection therewith.
This Agreement and the Exchange Note have been duly executed by the Company and, when delivered in accordance with the terms hereof
will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms.


b.     
 No Conflicts. The execution, delivery and performance of this Agreement and the Exchange Note by the Company
and the consummation by the Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate
any provision of the Company’s certificate of incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result
in the creation of any lien or encumbrance upon any of the properties or assets of the Company, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement,
credit facility, debt or other material instrument or other material understanding to which the Company is a party or by which
any property or asset of the Company is bound or affected, or (iii) conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company is subject or by which any property or asset of the Company is bound or affected, except, in the case of
clauses (ii) and (iii) above, such as could not have or reasonably be expected to result in a material adverse effect.


c.      
Filings, Consents and Approvals. Except for the filing of Form 8-K with the Securities and Exchange Commission (“SEC”)
as may be required, the Company is not required to obtain any approval, consent, waiver, authorization or order of, give any notice
to, or make any filing, qualification or registration with, any court or other federal, state, local, foreign or other governmental
authority or other person or entity in connection with the execution, delivery and performance by the Company of this Agreement
or the Exchange Note. No further approval or authorization of any stockholder, the Board of Directors or others is required for
the exchange for and the issuance of the Exchange Note and the issuance of the Shares as contemplated hereby.


 


d.     
Valid Issuance. The Exchange Note and the Shares are duly authorized. The Shares will be duly and validly issued,
fully paid and nonassessable, free and clear of all liens, claims and encumbrances.


 


e.      
No Inside Information. Neither the Company nor any person acting on its behalf has provided the Holder or its counsel
with any information that constitutes or might constitute material, non-public information concerning the Company.



     

     

    

 


f.      
No Additional Consideration. Except as otherwise set forth herein, no consideration has been offered or paid to
any person to amend or consent to a waiver, modification, forbearance, exchange or otherwise of any provision of the 10% Note
or to issue the Exchange Note and the Shares.


g.     
Survival. All of the Company’s warranties and representations contained in this Agreement shall survive the
execution, delivery and acceptance of this Agreement by the parties hereto.


4.     
Holding Period for Exchange Note and Shares.


 


a.      
Rule 144. Pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended (“Securities Act”),
the holding period of the Exchange Note and the Shares tack back to August 27, 2009 (the original issue date of the Original Note).
The Company agrees not to take a position contrary to this paragraph. The Company is not currently, and has never been, an issuer
of the type described in Rule 144(i) under the Securities Act. The Exchange Note is being issued in partial substitution and exchange
for the 10% Note and not in satisfaction of the 10% Note or any portion thereof. The Exchange Note shall not constitute a novation
or satisfaction and accord of any of such portion of the 10% Note. The Company hereby acknowledges and agrees that such new Exchange
Note shall amend, restate, modify, extend, renew and continue the terms and provisions contained in the 10% Note and shall not
extinguish or release the Company or any of its subsidiaries under any agreements with the Holder or otherwise constitute a novation
of its obligations thereunder.


 


b.     
Not Affiliate. The Company represents and warrants to the Holder that (i) the
Holder is not, as of the date of this representation, and has not been for the last one hundred twenty (120) days, an employee,
officer, director or, to the Company’s knowledge, a direct beneficial owner of more than ten percent (10%) of any class
of equity security of the Company, or otherwise been an “affiliate” as that term is used in Rule 144 promulgated under
the Securities Act, (ii) no consideration has been offered or paid by the Holder to amend or consent to a waiver, modification,
forbearance, exchange or otherwise of any provision of the Original Note or the 10% Note, (iii) the Holder has not, directly or
indirectly, controlled, been controlled by or been under common control with the Company, and (iv) the 10% Note has been outstanding
for in excess of one year and the 10% Note has not been amended since the issuance date thereof.


5.     
Public Information. So long as the Exchange Note is outstanding, the Company shall timely file (or timely obtain
extensions in respect thereof and file within the applicable grace period) all reports and definitive proxy or information statements
required to be filed by the Company under the Securities Exchange Act of 1934, as amended (“Exchange Act”),
and shall not terminate its status as an issuer required to file reports under the Exchange Act (even if the Exchange Act or the
rules and regulations promulgated thereunder would otherwise permit such termination).


 


6.     
Volume Restriction. Section 6 of the 2011 Exchange Agreement is hereby deleted and of no further force and effect;
for clarification, the Holder shall not be subject to any volume restrictions with respect to any sale of any Common Stock.


 


		7.	Miscellaneous.



 


a.      
The Holder shall have the right to approve before issuance any press






     

     

    
 


release,
SEC filing or any other public disclosure made by or on behalf of the Company whatsoever with respect to the transactions contemplated
hereby. If the transactions contemplated hereby constitute material non-public information concerning the Company, then the Company
shall, prior to 8:30AM on the trading day following such request, issue a current report on Form 8-K disclosing the material terms
of the transactions contemplated hereby and attaching this Agreement and all other related agreements thereto, including without
limitation the Exchange Note. If the Company does not so file a Form 8-K, then the Company represents and warrants that the transactions
contemplated hereby do not constitute material non-public information concerning the Company. The Company shall not at any time
furnish any material non-public information to the Holder without the Holder’s prior written consent.


 


b.     
This Agreement may be executed in two or more counterparts and by facsimile signature, delivery of PDF images of executed
signature pages by email or otherwise, and each of such counterparts shall be deemed an original and all of such counterparts
together shall constitute one and the same agreement.


 


c.      
This Agreement shall be governed by and interpreted in accordance with laws of the State of New York, excluding its choice
of law rules. The parties hereto hereby waive the right to a jury trial in any litigation resulting from or related to this Agreement.
The parties hereto consent to exclusive jurisdiction and venue in the federal and state courts sitting in the County of New York,
State of New York. Each party waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served
on any party hereto in the manner authorized by applicable law or court rule.


 


d.     
Each of the Holder and the Company hereby agrees and provides further assurances that it will, in the future, execute and
deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed,
all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purposes of this Agreement.


 


 


IN
WITNESS WHEREOF, this Agreement is executed as of the date first set forth above.


 


COMPANY:


 


XSUNX,
INC.


 


 


By: ______________________

Name:Tom Djokovich


Title:
CEO


 


 


HOLDER:


 


 


By:
___________________

Name:


Title:




     

     

    

 


THIS
12% PROMISSORY NOTE, IS BEING ISSUED IN EXCHANGE FOR THE 10% PROMISSORY NOTE DUE SEPTMEBER 30, 2012 WHICH WAS ISSUED IN EXCHANGE
FOR THE PROMISSORY NOTE ORIGINALLY ISSUED ON AUGUST 27, 2009 IN THE ORIGINAL PRINCIPAL AMOUNT OF $456,920.66 TO VIASYSTEMS CORPORATION,
FORMERLY KNOWN AS MERIX CORPORATION (“ORIGINAL NOTE”). FOR PURPOSES OF RULE 144, THIS NOTE SHALL BE DEEMED TO HAVE
BEEN ISSUED ON AUGUST 27, 2009.


 


 


XSUNX,
INC.


 


12%
PROMISSORY NOTE


 


 


Issuance
Date: September 30, 2012


Issuance
Date of Original Note: August 27, 2009


Original
Principal Amount: $385,863.00


 


FOR
VALUE RECEIVED, XSUNX, INC., a Colorado corporation having its principal place of business at 65 Enterprise, Aliso Viejo,
CA 92656 (the “Company”), promises to pay to the order of _____________________ or its assigns or successors-in-interest
(the “Holder”), the principal sum of Three Hundred Eight-Five Thousand Eight Hundred Sixty-Three U.S. Dollars
(US$385,863.00) and any additional sums due pursuant to the terms hereof on September 30, 2013 (the “Maturity Date”)
or such earlier date as this Note is required to be repaid as provided hereunder, and to pay accrued and unpaid interest to the
Holder on the aggregate outstanding principal amount of this Note in accordance with the provisions hereof to the extent provided
herein.


 


1.            
Issuance; Incorporation by Reference.


		(a)	Issuance.
                                                           This 12% Promissory Note (“Note”) is issued pursuant
                                                           to that certain Exchange Agreement, dated on or about the date hereof,
                                                           by and between the Company and the Holder (the “Exchange Agreement”).



		(b)	Incorporation.
                                                           This Note incorporates by reference, as if set forth herein in its
                                                           entirety and including without limitation all terms, conditions and
                                                           provisions set forth therein, the PipeFund Services Organization Standard
                                                           Transaction Document labeled CN 8-11 (Standard Note Terms) available
                                                           and accessible at www.pipefund.com (“PST Document CN”);
                                                           provided, however, that to the extent any of the terms, conditions
                                                           or provisions of this Note (without such incorporation) contradict
                                                           or conflict with the terms, conditions or provisions of PST Document
                                                           CN, this Note shall control.



2.            
Definitions. For purposes hereof, in addition to the terms
defined elsewhere in this Note:



     

     

    

 


		(a)	each
                                                           initially capitalized term used herein and not otherwise defined herein
                                                           shall have the meaning ascribed thereto in the Exchange Agreement or
                                                           PST Document CN, including without limitation definitions incorporated
                                                           therein by reference to PipeFund Services Organization Standard Transaction
                                                           Document labeled DEF 8-11 (Definitions), a PipeFund Standard Transaction
                                                           Document available and accessible at www.pipefund.com), provided that
                                                           the term “Securities Purchase Agreement” as used therein
                                                           shall refer to the Exchange Agreement; and



 


		(b)	the
                                                           following terms shall have the following meanings:



 


		(i)	“Conversion
                                                               Price” shall equal the lesser of (a) $0.025 (“Fixed
                                                               Price”) and (b) 70% of the lowest VWAP occurring during
                                                               the ten (10) consecutive Trading Days immediately preceding the
                                                               applicable Conversion Date on which the Holder elects to convert
                                                               all or part of this Note, subject to adjustment as provided in
                                                               this Note;



 


		(ii)	“Event
                                                                of Default” shall also include, in addition to those
                                                                events set forth in PST Document CN, any Change of Control; and



 


		(iii)	“Defaulted
                                                                 Debt Limit” shall mean $200,000.



 


3.            
Interest. Interest on the unpaid principal balance of this
Note shall:


		(a)	Rate.
                                                           Accrue daily at the rate of 18% per annum, commencing on the Issuance
                                                           Date through October 31, 2012, and thereafter at the rate of 12% per
                                                           annum, and compounding on the Maturity Date, provided that from
                                                           and after the occurrence and during the continuance of an Event of
                                                           Default interest shall accrue hereunder at the Default Rate;



		(b)	Calculation.
                                                           Be computed on the basis of a 360-day year of twelve 30-day months
                                                           and the actual number of days elapsed for any partial months; and



		(c)	Payment.
                                                           Be due and payable in arrears on the Maturity Date in cash only. 



4.            
Conversion Right. 


		(a)	Conversion
                                                           Right. This Note is convertible into shares of the Company’s
                                                           Common Stock at the Conversion Price, subject to and in accordance
                                                           with the terms and conditions set forth herein. 



		(b)	Ownership
                                                           Cap. The Holder’s Maximum Ownership Percentage is 4.9% (which
                                                           may be changed only as specified in PST Document CN).



		(c)	Adjustment.
                                                           For purposes of Section 4.1 of PST Document CN, the term Conversion
                                                           Price shall include without limitation the Fixed Price and each figure
                                                           used for determining the Conversion Price and shall be adjusted accordingly
                                                           upon any adjustment to the Conversion Price hereunder. 



5.            
Restrictive Covenants. So long as this Note remains outstanding,
the Company shall not, and shall not permit any Subsidiary (whether or not a Subsidiary on the Closing Date) to, directly or indirectly:


		(a)	Impairment.
                                                           Amend any of its Organizational Documents in any manner that materially
                                                           and adversely affects any rights of the Holder;




		(b)	Redemptions/Prepayments.
                                                           Redeem, repay, repurchase, offer to repay or repurchase, defease, make
                                                           payments in respect of, or otherwise acquire any shares of its Common
                                                           Stock, Options or Convertible Securities or any Indebtedness, other
                                                           than regularly scheduled principal and interest payments as such terms
                                                           are in effect as of the date hereof, provided that the Company
                                                           shall not in any event or manner repay or redeem any Indebtedness or
                                                           advances outstanding from any Company shareholder, officer or director.



		(c)	Dividends.
                                                           Declare, set aside or pay cash dividends or cash distributions on any
                                                           equity securities of the Company; or



		(d)	Affiliates.
                                                           Enter into any transaction with any Affiliate of the Company which
                                                           would be required to be disclosed in any public filing with the Commission,
                                                           except in the ordinary course of the Company’s or any Subsidiary’s
                                                           business and upon fair and reasonable terms that are no less favorable
                                                           to the Company and its Subsidiaries than the Company and its Subsidiaries
                                                           would obtain in a comparable arms’ length transaction with a
                                                           Person not an Affiliate of the Company and provided that such transaction
                                                           is expressly approved by a majority of the directors of the Company
                                                           other than the Affiliate who is a party to the transaction (even if
                                                           less than a quorum is otherwise required for board approval).



6.            
Prepayment. At any time and from time to time the Company
may deliver to the Holder an irrevocable written notice (“Prepayment Notice”)
electing to prepay all or part of the outstanding principal amount of this Note in cash, which Prepayment Notice shall be delivered
at least ten (10) Business Days before the date set forth in the Prepayment Notice as the date for such prepayment (“Prepayment
Date”). On the Prepayment Date the Company shall pay to the Holder the principal amount
elected to be prepaid, together with accrued but unpaid interest thereon. For clarification, the Holder may convert all or any
part of this Note prior to the Holder’s receipt of any such prepayment. 


IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the Issuance Date set forth above.


 


XSUNX,
INC.


 


 


By:
______________________________________


Name:


Title: