Wisconsin | 4911 | 39-1987014 |
(State or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer |
incorporation or organization) | Classification Code Number) | Identification Number) |
Mark R. Busch
|
K&L Gates LLP
|
214 North Tryon Street, Suite 4700
|
Charlotte, NC 28202
|
(704) 331-7440
|
Title of Each Class of Securities to be Registered
|
Proposed Maximum Aggregate Offering Price
|
Amount of Registration Fee
(1)(5)
|
Common stock
|
$ 11,500,000
|
$ 1,317.90
|
Underwriter Warrant
|
$ 100
|
$ 0.01
|
Shares of common stock underlying Underwriter Warrant (2)(3)(4)
|
$ 131.79
|
|
Total Registration Fee
|
$ 12,650,100
|
$ 1,449.70
|
Per Share
|
Total
|
||||
Public offering price
|
$ -
|
$ -
|
|||
Underwriting discount
|
$ -
|
$ -
|
|||
Proceeds, before expenses, to us (1)
|
$ -
|
$ -
|
About this Prospectus | 2 |
Cautionary Statement About Forward Looking Information | 2 |
Prospectus Summary | 2 |
Risk Factors | 5 |
Use of Proceeds | 5 |
5 Dilution | 5 |
Description of Capital Stock | 6 |
Underwriting | 8 |
Material U.S. Federal Income and Estate Tax Considerations for Non-U.S. Holders | 12 |
Legal Matters | 16 |
Experts | 16 |
Disclosure of Commission Position on Indemnification for Securities Act Liabilities | 16 |
Where You Can Find More Information | 17 |
Documents Incorporated By Reference | 17 |
|
About this Prospectus
|
|
Cautionary Statement About Forward Looking Information
|
Assumed offering price
|
$ 0.65
|
|
As adjusted net tangible book value per share as of December 31, 2011
|
$ 0.12
|
|
Increase per share attributable to this offering
|
$ 0.12
|
|
As adjusted tangible book value per share after this offering
|
$ 0.24
|
|
Dilution per share to new investors in this offering
|
$ 0.41
|
·
|
1,619,158 shares of our common stock issuable pursuant to outstanding non-related party warrants at a weighted average exercise price of $1.47;
|
·
|
4,144,303 shares of our common stock issuable pursuant to outstanding stock options at a weighted average exercise price of $1.39;
|
·
|
1,948,436 shares subject to outstanding restricted stock unit awards;
|
·
|
991,064 shares of common stock reserved for future grants and awards under our equity incentive plans;
|
·
|
Shares of Series A preferred stock and common stock issuable pursuant to the amended and restated securities purchase agreement dated August 30, 2010 between us and Socius CG II, Ltd.; and
|
·
|
Shares of common stock issuable pursuant to the warrant to be issued to the underwriter representing eight percent of the number of shares offered by this prospectus.
|
Without
Over-Allotment
|
With
Over-Allotment
|
|||
Public offering price
|
||||
Underwriting discount per share
|
||||
Total underwriting discount
|
||||
Proceeds, before expenses, to us
|
·
|
Over-allotment involves sales by the underwriter of shares in excess of the number of shares the underwriter is obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares over-allotted by an underwriter is not greater than the number of shares that it may purchase in the over-allotment option. In a naked short position, the number of shares involved is greater than the number of shares in the over-allotment option. The underwriter may close out any short position by either exercising its over-allotment option and/or purchasing shares in the open market.
|
·
|
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
|
·
|
Syndicate covering transactions involve purchases of the common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriter will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which it may purchase shares through the over-allotment option. If an underwriter sells more shares than could be covered by the over-allotment option, a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if an underwriter is concerned that there could be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering.
|
·
|
Penalty bids permit an underwriter to reclaim a selling concession from a syndicate member when the shares originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
|
·
|
to legal entities which are qualified investors as defined under the Prospectus Directive;
|
·
|
by the underwriters to fewer than 100 or, if the Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) as permitted under the Prospectus Directive, subject to obtaining the prior consent of the underwriters for any such offer; or
|
·
|
in any other circumstances falling within Article 3(2) of the Prospectus Directive;
|
·
|
it is a “qualified investor” as defined under the Prospectus Directive; and
|
·
|
in the case of any shares of common stock acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (i) the shares of common stock acquired by it in the offer have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than qualified investors, as that term is defined in the Prospectus Directive, or in circumstances in which the prior consent of the underwriters has been given to the offer or resale; or (ii) where the shares of common stock have been acquired by it on behalf of persons in any Relevant Member State other than qualified investors, the offer of those shares of common stock to it is not treated under the Prospectus Directive as having been made to such persons.
|
|
Material U.S. Federal Income and Estate Tax Considerations for Non-U.S. Holders
|
·
|
an individual who is a citizen or a resident of the United States;
|
·
|
a corporation or other entity taxable as a corporation for U.S. federal income tax purposes that was created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
|
·
|
an estate whose income is subject to U.S. federal income taxation regardless of its source;
|
·
|
a trust (a) if a U.S. court is able to exercise primary supervision over the trust’s administration and one or more U.S. persons have the authority to control all of the trust’s substantial decisions or (b) that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person; or
|
·
|
an entity that is disregarded as separate from its owner for U.S. federal income tax purposes if all of its interests are owned by a single person described above.
|
·
|
insurance companies and financial institutions;
|
·
|
tax-exempt organizations;
|
·
|
partnerships or other pass-through entities;
|
·
|
regulated investment companies or real estate investment trusts;
|
·
|
pension plans;
|
·
|
persons who received our common stock as compensation;
|
·
|
brokers and dealers in securities;
|
·
|
owners that hold our common stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; and
|
·
|
former citizens or residents of the United States subject to tax as expatriates.
|
·
|
the gain is effectively connected with a U.S. trade or business (and, if an applicable income tax treaty so provides, is also attributable to a permanent establishment or a fixed base maintained within the United States by the non-U.S. holder), in which case the gain will be taxed on a net income basis generally in the same manner as if the non-U.S. holder were a U.S. person, and, if the non-U.S. holder is a corporation, the additional branch profits tax described above in “Distributions on Our Common Stock” may also apply;
|
·
|
the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of the disposition and certain other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax on the net gain derived from the disposition, which may be offset by U.S.-source capital losses of the non-U.S. holder, if any; or
|
·
|
we are, or have been at any time during the five-year period preceding such disposition (or the non-U.S. holder’s holding period, if shorter), a “United States real property holding corporation.”
|
|
Where You Can Find More Information
|
|
Documents Incorporated By Reference
|
·
|
Our Annual Report on Form 10-K for the year ended June 30, 2011 filed with the SEC on September 8, 2011;
|
·
|
Our Proxy Statement for our 2011 Annual Meeting of Shareholders filed with the SEC on September 26, 2011; and
|
·
|
Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 filed with the SEC on November 14, 2011;
|
·
|
Our Quarterly Report on Form 10-Q for the quarter ended December 31, 2011 filed with the SEC on February 9, 2012;
|
·
|
Our Current Reports on Form 8-K filed with the SEC on August 30, 2011, September 9, 2011, November 14, 2011, November 14, 2011, December 9, 2011, December 15, 2011, February 2, 2012, February 3, 2012 and February 9, 2012 (other than any portions thereof deemed furnished and not filed); and
|
·
|
Exhibits 99.1 and 99.2 filed with our Current Report on Form 8-K/A filed with the SEC on April 4, 2011.
|
SEC registration fee
|
$ | 1,450 | ||
Accounting fees and expenses
|
$ | 30,000 | ||
Legal fees and expenses
|
$ | 100,000 | ||
Miscellaneous
|
$ | 18,550 | ||
Total
|
$ | 150,000 |
ZBB Energy Corporation | |
By: /s/ Eric C. Apfelbach | |
Eric C. Apfelbach | |
President and Chief Executive Officer | |
|
|
Position
|
Date
|
/s/ Eric C. Apfelbach
|
President and Chief Executive Officer
|
April 10, 2012
|
|
Eric C. Apfelbach
|
(Principal executive officer) and Director
|
||
/s/ Will Hogoboom
|
Chief Financial Officer
(Principal financial officer and Principal accounting officer)
|
April 10, 2012
|
|
Will Hogoboom
|
|||
*
|
|||
Charles W. Stankiewicz
|
Executive Vice President, Operations and Director
|
April 10, 2012
|
|
*
|
|||
Paul F. Koeppe
|
Chairman and Director
|
April 10, 2012
|
|
*
|
|||
Richard A. Abdoo
|
Director
|
April 10, 2012
|
|
*
|
|||
Manfred Birnbaum
|
Director
|
April 10, 2012
|
|
*
|
Director
|
April 10, 2012
|
|
James H. Ozanne
|
|||
*
|
Director
|
April 10, 2012
|
|
Richard A. Payne
|
|||
*
|
Director
|
April 10, 2012
|
|
Jeff Reichard
|
|||
*
/s/ Eric C. Apfelbach
|
|
|
|
Eric C. Apfelbach, attorney-in-fact
|
|||
Exhibit
No.
|
Description
|
Incorporated by Reference to
|
Form Underwriting Agreement
|
Filed herewith
|
|
3.1
|
Articles of Incorporation of ZBB Energy Corporation, as amended
|
Incorporated by reference to the Company’s Registration Statement on Form SB-2 filed on October 27, 2006
|
3.2
|
Amendment to Articles of Incorporation of ZBB Energy Corporation
|
Incorporated by reference to Appendix B attached to the Company’s Definitive Proxy Statement filed on September 24, 2010
|
3.3
|
Certificate of Designation of Preferences, Rights and Limitations of Series A Preferred Stock
|
Incorporated by reference to Appendix C attached to the Company’s Definitive Proxy Statement filed on September 24, 2010
|
3.4
|
Amended and Restated By-laws of ZBB Energy Corporation (as of November 4, 2009)
|
Incorporated by reference to the Company’s definitive proxy statement filed on September 25, 2009
|
4.1
|
Form of Stock Certificate
|
Incorporated by reference to the Company’s Amendment No. 3 to Registration Statement on Form SB-2 filed on April 13, 2007
|
4.2
|
Form of Common Stock Purchase Warrant
|
Incorporated by reference to the Company’s Report on Form 8-K filed on August 14, 2009
|
4.3
|
Form of Warrant
|
Incorporated by reference to the Company’s Report on Form 8-K filed on March 9, 2010
|
4.4
|
Form of Debenture
|
Incorporated by reference to the Company’s Report on Form 8-K filed on August 31, 2010
|
4.5
|
Warrant to Purchase Common Stock Issued to Socius CG II, Ltd. dated August 30, 2010
|
Incorporated by reference to the Company’s Report on Form 8-K filed on August 31, 2010
|
4.6
|
2010 Omnibus Long-Term Incentive Plan Form Stock Option Award Agreement
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 filed on January 31, 2010
|
4.7
|
2010 Omnibus Long-Term Incentive Plan Form Restricted Stock Unit Award Agreement
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 filed on January 31, 2010
|
Form of Underwriters Warrant
|
Filed herewith
|
|
Opinion of Godfrey & Kahn, S.C.
|
Filed herewith
|
Exhibit
No.
|
Description
|
Incorporated by Reference to
|
10.1
|
Employment Agreement dated as of August 18, 2010 between ZBB Energy Corporation and Scott Scampini
|
Incorporated by reference to the Company’s Report on Form 8-K filed on August 23, 2010
|
10.2
|
2002 Stock Option Plan of ZBB Energy Corporation
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 filed on April 16, 2008
|
10.3
|
2005 Employee Stock Option Scheme of ZBB Energy Corporation
|
Incorporated by reference to the Company’s Registration Statement on Form SB-2 filed on October 27, 2006
|
10.4
|
2007 Equity Incentive Plan of ZBB Energy Corporation
|
Incorporated by reference to the Company’s Registration Statement on Form S-8 filed on April 16, 2008
|
10.5
|
Resignation and Indemnification Agreement by and between the Company and Robert J. Parry dated as of October 31, 2009
|
Incorporated by reference to the Company’s Report on Form 8-K filed on November 4, 2009
|
10.6
|
Director Nonstatutory Stock Option Agreement by and between the Company and Paul F. Koeppe dated as of November 2, 2009
|
Incorporated by reference to the Company’s Report on Form 8-K filed on November 4, 2009
|
10.7
|
Agreement dated January 7, 2010 by and between the Company and Eric C. Apfelbach
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2009
|
10.8
|
Restrictive Covenant Agreement dated January 7, 2010 by and between the Company and Eric C. Apfelbach
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2009
|
10.9
|
Nonstatutory Stock Option Agreement dated January 7, 2010 by and between the Company and Eric C. Apfelbach (performance-based)
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2009
|
10.10
|
Nonstatutory Stock Option Agreement dated January 7, 2010 by and between the Company and Eric C. Apfelbach (time-based)
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2009
|
10.11
|
Placement Agent Agreement, dated March 1, 2010, by and between ZBB Energy Corporation and Sutter Securities Incorporated
|
Incorporated by reference to the Company’s Report on Form 8-K filed on March 9, 2010
|
10.12
|
Securities Purchase Agreement, dated March 8, 2010, by and between ZBB Energy Corporation and the purchasers signatory thereto
|
Incorporated by reference to the Company’s Report on Form 8-K filed on March 9, 2010
|
Exhibit
No.
|
Description
|
Incorporated by Reference to
|
Exhibit
No.
|
Description
|
Incorporated by Reference to
|
10.26
|
Registration Rights Agreement between ZBB Energy Corporation and Tier Electronics LLC dated January 21, 2011
|
Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on January 24, 2011
|
10.27
|
Employment Agreement between ZBB Energy Corporation and Jeffrey Reichard dated January 21, 2011
|
Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on January 24, 2011
|
10.28
|
Form of Nonstatutory Option Agreements issued on January 21, 2011 to Jeff Reichard, Joanne Reichard and Nathan Jobe
|
Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on January 24, 2011
|
10.29
|
$1,350,000 Non-negotiable Promissory Note issued on January 21, 2011 to Tier Electronics LLC
|
Incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on January 24, 2011
|
10.30
|
Form of Securities Purchase Agreement, dated June 13, 2011
|
Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 14, 2011
|
10.31
|
Collaboration Agreement between ZBB Energy Corporation and Honam Petrochemical Corporation dated April 8, 2011
|
Incorporated by reference to Exhibit 10.32 to the Company’s Annual Report on Form 10-K for the year ended June 30, 2011
|
10.32
|
Form of Stock Purchase Agreement, dated June 14, 2011
|
Incorporated by reference to Exhibit 10.34 to the Company’s Registration Statement on Form S-1 filed on February 16, 2012
|
10.33
|
Placement Agency Agreement between ZBB Energy Corporation and MDB Capital Group, LLC, dated June 8, 2011
|
Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on June 14, 2011
|
10.34
|
Joint Venture Agreement of Anhui MeiXin Store Energy Co., Ltd. by and between ZBB PowerSav Holdings Limited and Anhui Xinrui Investment Co., Ltd, dated August 30, 2011
|
Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011
|
10.35
|
Limited Liability Company Agreement of ZBB PowerSav Holdings Limited by and between ZBB Cayman Corporation and PowerSav, Inc., dated August 30, 2011
|
Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011
|
10.36
|
Anhui Meineng Store Energy Co., Ltd. Supplemental Agreement to the Joint Venture Agreement by and between ZBB PowerSav Holdings Limited and Anhui Xinlong Investment Management Co., Ltd, dated November 15, 2011
|
Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2011
|
Exhibit
No.
|
Description
|
Incorporated by Reference to
|
Exhibit
No.
|
Description
|
Incorporated by Reference to
|
Addendum to Employment Agreement between ZBB Energy Corporation and Kevin Dennis dated August 29, 2011
|
Filed herewith
|
|
Offer letter between ZBB Energy Corporation and Daniel Nordloh dated April 29, 2010
|
Filed herewith
|
|
First Amendment to Letter Agreement between ZBB Energy Corporation and Daniel Nordloh dated
April 28, 2011
|
Filed herewith
|
|
Second Amendment to Letter Agreement between ZBB Energy Corporation and Daniel Nordloh dated March 23, 2012
|
Filed herewith
|
|
Addendum to Employment Agreement between ZBB Energy Corporation and Scott Scampini dated October 11, 2010
|
Filed herewith
|
|
Consent of PKF O’Connor Davies
|
Filed herewith
|
|
Consent of Baker Tilly
Virchow Krause, LLP
|
Filed herewith
|
|
Consent of Baker Tilly
Virchow Krause, LLP
|
Filed herewith
|
|
23.4 | Consent of Godfrey & Kahn, S.C. (included in its opinion filed as exhibit 5) | |
24 | Power of Attorney | Previously filed |
(i)
|
in the form of Common Stock owned by the Holder (based on the Fair Market Value (as defined below) of such Common Stock on the date of exercise);
|
(ii)
|
in the form of Warrant Shares withheld by the Company from the Warrant Shares otherwise to be received upon exercise of this Warrant having an aggregate Fair Market Value on the date of exercise equal to the aggregate Exercise Price of the Warrant Shares being purchased by the Holder; or
|
(iii)
|
by a combination of the foregoing, provided that the combined value of all cash and the Fair Market Value of any shares surrendered to the Company is at least equal to the aggregate Exercise Price for the number of Warrant Shares being purchased by the Holder.
|
|
X =
|
the number of Warrant Shares to be issued to the Holder (rounded to the nearest whole share).
|
|
Y =
|
the number of Warrant Shares with respect to which this Warrant is being exercised.
|
|
A =
|
the Fair Market Value of the Common Stock.
|
|
B =
|
the Exercise Price.
|
ZBB ENERGY CORPORATION
By:
Name:
Title:
|
|
·
|
by cash in accordance with Section 3.1(b) of the Warrant
|
·
|
via cashless exercise in accordance with Section 3.1(c) of the Warrant in the following manner:
|
Dated:
|
|
Print or Type Name
|
|
(Signature must conform in all respects to name of holder as specified on the face of Warrant)
|
|
(Street Address)
|
|
(City) (State) (Zip Code)
|
|
Dated:
|
|
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
|
|
(Street Address)
|
|
(City) (State) (Zip Code)
|
|
Signed in the presence of:
|
|
(Signature of Transferee))
|
|
(Street Address)
|
|
(City) (State) (Zip Code)
|
|
Signed in the presence of:
|
|
April 10, 2012 | Exhibit 5 |
|
RE:
|
Registration Statement on Form S-1 Filed by ZBB Energy Corporation
|
Very truly yours, | |
/s/ Godfrey & Kahn, S.C. | |
GODFREY & KAHN, S.C. | |
Ÿ
|
You will serve as ZBB’s Vice President Engineering and Product Development reporting to ZBB’s Chief Executive Officer. Your services to ZBB will be performed in Menomonee Falls, Wisconsin. You acknowledge, however, that you may be required to travel in connection with the performance of your duties hereunder.
|
Ÿ
|
Nothing contained in this letter will be construed as conferring upon you any right to remain employed by ZBB or any of its subsidiaries or affiliates or affect the right of ZBB or any of its subsidiaries or its affiliates to terminate your employment at any time for any reason or no reason, subject to the obligations of ZBB as set forth herein.
|
Ÿ
|
You will be entitled to an annual salary of $160,000, payable in accordance with ZBB’s normal salaried payroll practices. The Chief Executive Officer will review, at least annually, your overall compensation with a view to increasing it if, in the sole judgment of the Chief Executive Officer, the performance of ZBB or your services merit such an increase.
|
Ÿ
|
ZBB shall be entitled to withhold from amounts to be paid to you hereunder any federal, state, or local withholding or other taxes or charges which it is required to withhold under applicable law.
|
·
|
ZBB and Employee agree that this letter agreement fully replaces the employment agreement dated January 7, 2008.
|
·
|
The term under this Agreement shall commence effective as of February 3, 2010 and shall, except as it may otherwise be subject to termination in section 6 of this Agreement, continue thereafter for a period of three (3) years.
|
·
|
The term of the engagement under this Agreement shall commence effective as of February 3, 2010 hereto and shall, except as it may otherwise be subject to termination hereunder, continue thereafter for the period of time set forth above.
|
N93 W14475 Whittaker Way
Menomonee Falls WI 53051
Tel: (262) 253 9800 Fax: (262) 253 9822
Email: hbrown@zbbenergy.com
www.zbbenergy.com
|
PO Box 2047
Kardinya WA 6163
Barrington Street
240 Bibra Lake WA 6163
Tel: (08) 9494 2055 Fax: (08) 9494 2066
Email: info@zbbenergy.com
|
·
|
The term of this Agreement shall renew automatically for successive terms of one year each unless either party elects not to renew this Agreement by delivery of written notice to the other party not less than ninety (90) calendar days prior to the end of the then current term.
|
Ÿ
|
Effective as of the date of your appointment, you will receive option awards.
|
Ÿ
|
You will be granted an option to purchase 100,000 shares with an exercise price equal to the closing price of ZBB’s common stock on the NYSE Amex on the date of your appointment.
|
o
|
Vesting will be over 3 years with the first 1/3 vesting one year from the grant date and the remaining 2/3 vesting in 24 equal monthly installments as of the end of each calendar month beginning on January 31, 2011 and ending on December 31, 2012.
|
o
|
The option will not be exercisable as to any portion thereof after the fifth anniversary of the date on which such portion vests.
|
o
|
The option will have such other terms and conditions specified in the form of option agreement previously provided to you.
|
Ÿ
|
During the term of your employment by ZBB, ZBB will provide you with, and you will be eligible for, all benefits of employment generally made available to the senior executives of ZBB (collectively, the “Benefit Plans”), subject to and on a basis consistent with the terms, conditions and overall administration of such Benefit Plans. You will be considered for participation in Benefit Plans which by the terms thereof are discretionary in nature (such as stock option plans) on the same basis as other executive personnel of ZBB of similar rank. Notwithstanding the foregoing, you may elect either to participate in ZBB’s health Benefit Plan or obtain other health insurance.
|
Ÿ
|
We also offer you four weeks of vacation per calendar year.
|
Ÿ
|
Without giving effect to the timing of the payment of your base salary for 2010 as set forth in Section 2, above, you will be entitled to a severance payment in an amount equal to six (6) months of your annual base salary as then in effect paid in accordance with ZBB’s normal salaried payroll practices as then in effect in the event (a) ZBB terminates your employment for any reason other than “Cause” or “Disability”, (b) you terminate your employment with ZBB for “Good Reason”, or (c) you die. In the event your employment with ZBB is terminated due to “Disability,” you will be entitled to a severance payment in an amount equal to your base salary as then in effect from the date of termination through the date on which benefits under the long-term disability policy begin, but in no event longer than 90 days, paid in accordance with ZBB’s normal salaried payroll practices as then in effect. The definitions of “Cause”, “Disability” and “Good Reason” are attached as an exhibit to this letter. In each case, this severance benefit will be contingent on your execution of a release in a form acceptable to ZBB which is not withdrawn or otherwise revoked within the applicable statutory and/or regulatory time periods or otherwise. You will also be entitled to all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination.
|
Ÿ
|
If you terminate your employment with ZBB for “Good Reason”, and if you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following such termination, then ZBB shall pay your monthly premium under COBRA until the earlier of: (i) the last day of the six month period following such termination or (ii) the date on which you are offered or obtain health insurance coverage in connection with new employment or self-employment. If you are not eligible for COBRA coverage because you have waived health insurance coverage, then, subject to the dollar limits above, ZBB shall pay your monthly premium for long-term disability conversion coverage until the earlier of: (i) the last day of the six month period following such termination or (ii) the date on which you are offered or obtain long-term disability insurance coverage in connection with new employment or self-employment.
|
Ÿ
|
If you terminate your employment with ZBB other than for “Good Reason” or ZBB terminates your employment for “Cause”, you will be entitled to the payment of any accrued but unpaid base salary through the date of termination, plus all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination. In either case, you will not be entitled to any severance payment and you will not be entitled to the payment of the premiums specified above.
|
Ÿ
|
As a condition to your appointment, you will be required to enter into a restrictive covenant agreement. If you breach the provisions of the restrictive covenant agreement, then you shall forfeit any unpaid severance payments and COBRA and long-term disability conversion coverage premiums as of the time of ZBB’s determination of the breach, and you shall repay to ZBB any severance payments and COBRA and long-term disability conversion coverage premiums you have received as of the time of ZBB’s determination of the breach as soon as practicable after ZBB provides a written demand for payment to you.
|
Ÿ
|
You hereby represent and warrant that you are not bound by any employment or confidentiality agreement or other obligation or commitment, whether contractual or otherwise, that would be inconsistent, or place you in a position of conflict, with your position as Vice President Sales, Marketing and Systems Engineering or this letter agreement.
|
Ÿ
|
The date of your appointment as Vice President Sales, Marketing and Systems Engineering of ZBB will be February 3, 2010.
|
Ÿ
|
This letter agreement shall be binding upon any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of ZBB’s business and/or assets. For all purposes under this Agreement, the term “ZBB” shall include any successor to ZBB’s business and/or assets which become bound by this letter agreement.
|
Ÿ
|
This letter agreement and all of your rights hereunder shall inure to the benefit of, and be enforceable by, your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
|
Ÿ
|
Notices and all other communications contemplated by this letter agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by overnight courier or U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of notices to you, notices shall be addressed to you at the home address which you most recently communicated to ZBB in writing. In the case of notices to ZBB, notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
|
Ÿ
|
No provision of this letter agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by you and by an authorized officer of ZBB (other than you). No waiver by either party of any breach of, or of compliance with, any condition or provision of this letter agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
|
Ÿ
|
No other agreements, representations or understandings (whether oral or written and whether express or implied) which are not expressly set forth or referenced in this letter agreement have been made or entered into by either party with respect to the subject matter hereof. This letter agreement and the other agreements, representations and understandings expressly set forth or referenced herein contain the entire understanding of the parties with respect to the subject matter hereof.
|
Ÿ
|
Any termination of this letter agreement shall not release either ZBB or you from our respective obligations to the date of termination nor from the provisions of this letter agreement which, by necessary or reasonable implication, are intended to apply after termination of this letter agreement.
|
Ÿ
|
The validity, interpretation, construction and performance of this letter agreement shall be governed by the laws of the State of Wisconsin (other than provisions governing the choice of law).
|
Ÿ
|
The invalidity or unenforceability of any provision or provisions of this letter agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
|
Ÿ
|
This letter agreement and all your rights and obligations hereunder are personal to you and may not be transferred or assigned by you at any time. ZBB may assign its rights under this letter agreement to any entity that assumes ZBB’s obligations hereunder in connection with any sale or transfer of all or a substantial portion of ZBB’s assets to such entity.
|
Ÿ
|
This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
|
·
|
Effective September 1, 2011, you will be entitled to an annual salary of $170,000, payable in accordance with ZBB’s normal salaried payroll practices. The CEO will review, at least annually, your overall compensation with a view to increasing it if, in the sole judgment of the CEO, the performance of ZBB or your services merit such an increase.
|
·
|
ZBB shall be entitled to withhold from amounts to be paid to you hereunder any federal, state, or local withholding or other taxes or charges which it is required to withhold under applicable law.
|
Very truly yours, | |
ZBB ENERGY CORPORATION | |
By: /s/ Eric Apfelbach | |
Eric Apfelbach (Chief Executive Officer) |
N93 W14475 Whittaker Way
Menomonee Falls WI 53051
Tel: (262) 253 9800 Fax: (262) 253 9822
Email: hbrown@zbbenergy.com
www.zbbenergy.com
|
PO Box 2047
Kardinya WA 6163
240 Barrington Street
Bibra Lake WA 6163
Tel: (08) 9494 2055 Fax: (08) 9494 2066
Email: info@zbbenergy.com
|
Ÿ
|
You will serve as ZBB’s VP of Business Development and Marketing reporting to ZBB’s CEO. Your services to ZBB will be performed primarily in Menomonee Falls, Wisconsin. You acknowledge, however, that you may be required to travel in connection with the performance of your duties hereunder.
|
Ÿ
|
Nothing contained in this letter will be construed as conferring upon you any right to remain employed by ZBB or any of its subsidiaries or affiliates or affect the right of ZBB or any of its subsidiaries or its affiliates to terminate your employment at any time for any reason or no reason, subject to the obligations of ZBB as set forth herein.
|
Ÿ
|
You will be entitled to an annual salary of $160,000, payable in accordance with ZBB’s normal salaried payroll practices. The CEO will review, at least annually, your overall compensation with a view to increasing it if, in the sole judgment of the CEO, the performance of ZBB or your services merit such an increase.
|
Ÿ
|
ZBB shall be entitled to withhold from amounts to be paid to you hereunder any federal, state, or local withholding or other taxes or charges which it is required to withhold under applicable law.
|
Ÿ
|
You shall be entitled to a portion of the Sales & Marketing stock option bonus pool estimated at 35,000 shares. This will be a common pool of stock based on meeting a specific revenue target (yet to be determined). More details will be provided.
|
·
|
The term under this Agreement shall commence effective as of April 29, 2010 and shall, except as it may otherwise be subject to termination in section 6 of this Agreement, continue thereafter for a period of one year.
|
N93 W14475 Whittaker Way
Menomonee Falls WI 53051
Tel: (262) 253 9800 Fax: (262) 253 9822
Email: hbrown@zbbenergy.com
www.zbbenergy.com
|
PO Box 2047
Kardinya WA 6163
240 Barrington Street
Bibra Lake WA 6163
Tel: (08) 9494 2055 Fax: (08) 9494 2066
Email: info@zbbenergy.com
|
·
|
The term of the engagement under this Agreement shall commence effective as of April 29, 2010 hereto and shall, except as it may otherwise be subject to termination hereunder, continue thereafter for the period of time set forth above.
|
·
|
The term of this Agreement shall renew automatically for successive terms of one year each unless either party elects not to renew this Agreement by delivery of written notice to the other party not less than ninety (90) calendar days prior to the end of the then current term.
|
Ÿ
|
Effective as of the date of your appointment, you will receive option awards.
|
Ÿ
|
We will reimburse your commuting expenses to and from ZBB’s corporate offices in the following manner:
|
o
|
IRS mileage reimbursement for miles that exceeds 60 miles round trip to and from your home to ZBB’s corporate offices.
|
o
|
This reimbursement will not exceed $10,000 per year.
|
Ÿ
|
During the term of your employment by ZBB, ZBB will provide you with, and you will be eligible for, all benefits of employment generally made available to the senior executives of ZBB (collectively, the “Benefit Plans”), subject to and on a basis consistent with the terms, conditions and overall administration of such Benefit Plans. You will be considered for participation in Benefit Plans which by the terms thereof are discretionary in nature (such as stock option plans) on the same basis as other executive personnel of ZBB of similar rank. Notwithstanding the foregoing, you may elect either to participate in ZBB’s health Benefit Plan or obtain other health insurance. If you elect to obtain other health insurance, ZBB will pay the monthly premiums for such insurance up to an amount equal to $800 per month paid either directly by ZBB to the insurance provider, or reimbursed to you on a monthly basis as soon as practicable following your submission to ZBB of proof of payment of each monthly premium payment. You will be solely responsible for the payment of monthly premiums in excess of this amount. ZBB’s payment of such premiums shall constitute an “accident or health plan” for the purpose of Section 106 of the Internal Revenue Code of 1986, as amended.
|
Ÿ
|
We also offer you three weeks of vacation per calendar year.
|
Ÿ
|
Without giving effect to the timing of the payment of your base salary for 2010 as set forth in Section 2, above, you will be entitled to a severance payment in an amount equal to three months of your annual base salary as then in effect paid in accordance with ZBB’s normal salaried payroll practices as then in effect in the event (a) ZBB terminates your employment for any reason other than “Cause” or “Disability”, (b) you terminate your employment with ZBB for “Good Reason”, or (c) you die. In the event your employment with ZBB is terminated due to “Disability,” you will be entitled to a severance payment in an amount equal to your base salary as then in effect from the date of termination through the date on which benefits under the long-term disability policy begin, but in no event longer than 90 days, paid in accordance with ZBB’s normal salaried payroll practices as then in effect. The definitions of “Cause”, “Disability” and “Good Reason” are attached as an exhibit to this letter. In each case, this severance benefit will be contingent on your execution of a release in a form acceptable to ZBB which is not withdrawn or otherwise revoked within the applicable statutory and/or regulatory time periods or otherwise. You will also be entitled to all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination.
|
Ÿ
|
If you terminate your employment with ZBB for “Good Reason”, and if you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following such termination, then ZBB shall pay your monthly premium under COBRA until the earlier of: (i) the last day of the six month period following such termination or (ii) the date on which you are offered or obtain health insurance coverage in connection with new employment or self-employment. If you are not eligible for COBRA coverage because you have waived health insurance coverage, then, subject to the dollar limits above, ZBB shall pay your monthly premium for long-term disability conversion coverage until the earlier of: (i) the last day of the six month period following such termination or (ii) the date on which you are offered or obtain long-term disability insurance coverage in connection with new employment or self-employment.
|
Ÿ
|
If you terminate your employment with ZBB other than for “Good Reason” or ZBB terminates your employment for “Cause”, you will be entitled to the payment of any accrued but unpaid base salary through the date of termination, plus all accrued and unpaid benefits under any Benefit Plans in which you participate through the date of termination. In either case, you will not be entitled to any severance payment and you will not be entitled to the payment of the premiums specified above.
|
Ÿ
|
As a condition to your appointment, you will be required to enter into a restrictive covenant agreement. If you breach the provisions of the restrictive covenant agreement, then you shall forfeit any unpaid severance payments and COBRA and long-term disability conversion coverage premiums as of the time of ZBB’s determination of the breach, and you shall repay to ZBB any severance payments and COBRA and long-term disability conversion coverage premiums you have received as of the time of ZBB’s determination of the breach as soon as practicable after ZBB provides a written demand for payment to you.
|
Ÿ
|
You hereby represent and warrant that you are not bound by any employment or confidentiality agreement or other obligation or commitment, whether contractual or otherwise, that would be inconsistent, or place you in a position of conflict, with your position as VP Business Development and Marketing or this letter agreement.
|
Ÿ
|
The date of your appointment as VP Business Development and Marketing of ZBB will be April 29, 2010.
|
Ÿ
|
This offer is based on completion of a drug test with a negative result.
|
Ÿ
|
This letter agreement shall be binding upon any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of ZBB’s business and/or assets. For all purposes under this Agreement, the term “ZBB” shall include any successor to ZBB’s business and/or assets which become bound by this letter agreement.
|
Ÿ
|
This letter agreement and all of your rights hereunder shall inure to the benefit of, and be enforceable by, your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
|
Ÿ
|
Notices and all other communications contemplated by this letter agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by overnight courier or U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of notices to you, notices shall be addressed to you at the home address which you most recently communicated to ZBB in writing. In the case of notices to ZBB, notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
|
Ÿ
|
No provision of this letter agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by you and by an authorized officer of ZBB (other than you). No waiver by either party of any breach of, or of compliance with, any condition or provision of this letter agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
|
Ÿ
|
No other agreements, representations or understandings (whether oral or written and whether express or implied) which are not expressly set forth or referenced in this letter agreement have been made or entered into by either party with respect to the subject matter hereof. This letter agreement and the other agreements, representations and understandings expressly set forth or referenced herein contain the entire understanding of the parties with respect to the subject matter hereof.
|
Ÿ
|
Any termination of this letter agreement shall not release either ZBB or you from our respective obligations to the date of termination nor from the provisions of this letter agreement which, by necessary or reasonable implication, are intended to apply after termination of this letter agreement.
|
Ÿ
|
The validity, interpretation, construction and performance of this letter agreement shall be governed by the laws of the State of Wisconsin (other than provisions governing the choice of law).
|
Ÿ
|
The invalidity or unenforceability of any provision or provisions of this letter agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
|
Ÿ
|
This letter agreement and all your rights and obligations hereunder are personal to you and may not be transferred or assigned by you at any time. ZBB may assign its rights under this letter agreement to any entity that assumes ZBB’s obligations hereunder in connection with any sale or transfer of all or a substantial portion of ZBB’s assets to such entity.
|
Ÿ
|
This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
|
·
|
Effective April 29, 2011, you will be entitled to an annual salary of $170,000, payable in accordance with ZBB’s normal salaried payroll practices. The CEO will review, at least annually, your overall compensation with a view to increasing it if, in the sole judgment of the CEO, the performance of ZBB or your services merit such an increase.
|
·
|
ZBB shall be entitled to withhold from amounts to be paid to you hereunder any federal, state, or local withholding or other taxes or charges which it is required to withhold under applicable law.
|
·
|
Effective April 29, 2011, the term of the Letter Agreement shall, except as may otherwise be subject to termination in Section 6 of the Letter Agreement, continue through April 29, 2013, subject to renewal as described below.
|
·
|
The term of this Letter Agreement shall renew automatically for successive terms of one year each unless either party elects not to renew the Letter Agreement by delivery of written notice to the other party not less than ninety (90) calendar days prior to the end of the then current term. If the Letter Agreement is renewed, the terms of the Letter Agreement during such renewal term shall be the same as the terms in effect immediately prior to such renewal, subject to any such changes or modifications as mutually may be agreed between the parties as evidenced in a written instrument signed by both the Corporation and the Employee.
|
·
|
You will be eligible to participate in the 2010 Omnibus Long-Term Incentive Plan (“Plan”) in accordance with and subject to the terms of the Plan.
|
CORPORATION: | |
ZBB ENERGY CORPORATION | |
By: | |
(Title) | |
EMPLOYEE: | |
Daniel Nordloh |
·
|
Effective November 7, 2011, you will serve as the Corporation’s Executive Vice President of Global Business Development reporting to the Corporation’s CEO. Your services shall be performed primarily in Menomonee Falls, Wisconsin. You acknowledge and agree that you will be required to travel in connection with the performance of your job duties.
|
·
|
Nothing in this Letter Agreement will be construed as conferring upon you any right to remain employed by the Corporation or any of its subsidiaries or affiliates, or affect the right of the Corporation or any of its affiliates to terminate your employment at any time, for any reason or no reason, subject to the obligations contained in this Letter Agreement.
|
·
|
Effective September 1, 2011, you will be entitled to an annual salary of $180,000, payable in accordance with ZBB’s normal salaried payroll practices. The CEO will review, at least annually, your overall compensation with a view to increasing it if, in the sole judgment of the CEO, the performance of ZBB or your services merit such an increase.
|
·
|
ZBB shall be entitled to withhold from amounts to be paid to you hereunder any federal, state, or local withholding or other taxes or charges which it is required to withhold under applicable law.
|
·
|
Effective March 23, 2012, the term of the Letter Agreement shall, except as may otherwise be subject to termination in Section 6 of the Letter Agreement, continue through December 31, 2014, subject to renewal as described below.
|
·
|
The term of this Letter Agreement shall renew automatically for successive terms of one year each unless either party elects not to renew the Letter Agreement by delivery of written notice to the other party not less than ninety (90) calendar days prior to the end of the then current term. If the Letter Agreement is renewed, the terms of the Letter Agreement during such renewal term shall be the same as the terms in effect immediately prior to such renewal, subject to any such changes or modifications as mutually may be agreed between the parties as evidenced in a written instrument signed by you and the Corporation.
|
·
|
You will be eligible to participate in the ZBB Energy 2010 Omnibus Plan (“Plan”) in accordance with and subject to the terms of the Plan.
|
·
|
You will be eligible to receive a Management By Objective Bonus (“MBO Bonus”) of up to the maximum gross amount of $50,000 (Fifty Thousand Dollars and Zero Cents) per fiscal year, the terms and conditions and actual award of which shall be determined solely by the Corporation and is subject to approval by the Corporation’s Compensation Committee. The Corporation will provide you with the Annual MBO Bonus targets in separate correspondence to you. New fiscal MBO Bonus targets will be set by the Corporation each fiscal year.
|
CORPORATION: | |
ZBB ENERGY CORPORATION | |
By: | |
(Title) | |
EMPLOYEE: | |
Daniel Nordloh |
Very truly yours, | |
ZBB ENERGY CORPORATION | |
By: ___________________________________ | |
Eric Apfelbach (Chief Executive Officer) | |
By: ___________________________________ | |
Scott Scampini (Executive VP & CFO) |
N93 W14475 Whittaker Way
Menomonee Falls WI 53051
Tel: (262) 253 9800 Fax: (262) 253 9822
Email: hbrown@zbbenergy.com
www.zbbenergy.com
|
PO Box 2047
Kardinya WA 6163
240 Barrington Street
Bibra Lake WA 6163
Tel: (08) 9494 2055 Fax: (08) 9494 2066
Email: info@zbbenergy.com
|