Attached files
| file | filename |
|---|---|
| EX-10.1 - EnSync, Inc. | v208575_ex10-1.htm |
| EX-10.4 - EnSync, Inc. | v208575_ex10-4.htm |
| EX-10.3 - EnSync, Inc. | v208575_ex10-3.htm |
| EX-10.5 - EnSync, Inc. | v208575_ex10-5.htm |
| EX-10.2 - EnSync, Inc. | v208575_ex10-2.htm |
UNITED
STATES
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 (Date of earliest event reported): January 21, 2011
ZBB
Energy Corporation
(Exact
name of registrant as specified in charter)
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Wisconsin
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001-33540
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39-1987014
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(State
or other jurisdiction
of
incorporation)
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(Commission
file
number)
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(IRS
Employer
Identification
Number)
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N93 W14475 Whittaker Way, Menomonee Falls,
Wisconsin
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53051
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (262)
253-9800
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.
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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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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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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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o
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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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Item
1.01.
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Entry
into a Material Definitive
Agreement.
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In
connection with the Purchase Agreement, on the Closing Date the Company and
Seller entered into a Registration Rights Agreement (the “Registration Rights
Agreement”). Under the Registration Rights Agreement Seller has
certain “piggyback” rights pursuant to which it is entitled to cause the Company
to register Seller’s resale of the Subject Shares on certain registration
statements proposed to be filed by the Company.
In
connection with the Purchase Agreement, Jeffrey Reichard, the President of
Seller, entered into an employment agreement with the Company on the Closing
Date. Pursuant to his employment agreement (the “Employment
Agreement”), Mr. Reichard became the Vice President of Electronics Development
of the Company, the President of Acquisition Sub, a member of the Board of
Directors of the Company and a member of the Board of Directors of Acquisition
Sub. In connection with the Purchase Agreement, Acquisition Sub also
entered into an employment agreement with Joanne Reichard pursuant to
which she will serve as Vice President of Acquisition Sub and as a member of its
Board of Directors.
On the
Closing Date, in connection with the Purchase Agreement and the employment
agreements, the Company awarded inducement options to purchase a total of
750,000 shares of the Company’s common stock to Mr. Reichard, Ms. Reichard and
Nathan Jobe. Mr. Reichard was awarded a total of 650,000 of these
options, of which (1) 420,000 will vest in three equal annual installments
beginning on December 31, 2011 based on Acquisition Sub’s achievement of certain
revenue targets and subject to Mr. Reichard’s continued employment with
Acquisition Sub and (2) the remaining 230,000 of which will vest in three equal
annual installments beginning on the one-year anniversary of the Closing Date
subject to Mr. Reichard’s continued employment with Acquisition
Sub. Of the remaining 100,000 inducement options, 75,000 were awarded
to Ms. Reichard and 25,000 were awarded to Mr. Jobe, which such options will
vest in three equal annual installments beginning on the one-year anniversary of
the Closing Date subject to Ms. Reichard’s and Mr. Jobe’s continued employment
with Acquisition Sub. The per share exercise price of the inducement
options is $1.26, which was the closing price of the Company’s common stock
on the NYSE Amex on the day preceding the Closing Date. The Company
intends to register the inducement options and the shares issuable upon exercise
thereof on a registration statement on Form S-8.
2
A copy of
the Purchase Agreement, the Registration Rights Agreement, the Employment
Agreement and the form of inducement option award agreement are filed with this
Current Report on Form 8-K as Exhibits 10.1, 10.2, 10.3, and 10.4,
respectively, and are hereby incorporated herein by reference. The
foregoing descriptions of such agreements and the transactions contemplated
therein do not purport to be complete and are qualified in their entirety by
reference to the full text of each such agreement.
The
information contained in “Item 2.03 – Creation of a Direct Financial Obligation
or an Obligation under an off-Balance Sheet Arrangement of a Registrant” is
incorporated herein by reference.
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Item
2.01.
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Completion
of Acquisition or Disposition of
Assets.
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The
information contained in “Item 1.01 – Entry into a Material Definitive
Agreement” is incorporated herein by reference.
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Item
2.03.
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Creation
of a Direct Financial Obligation or an Obligation under an off-Balance
Sheet Arrangement of a
Registrant.
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On the
Closing Date, Acquisition Sub paid a portion of the purchase price for the
Acquired Business by issuing a non-negotiable promissory note (the “Purchase
Note”) to Seller. The Purchase Note is in the principal amount of
$1,350,000.00 and bears interest at a fixed annual rate equal to eight
percent. The principal balance of the Purchase Note is payable in
three equal installments of $450,000.00 on the first, second and third
anniversaries of the Closing Date. Accrued interest is payable
monthly.
If the
federal capital gains tax rate exceeds 15% and/or the State of Wisconsin capital
gains tax rate exceeds 5.425% at any time prior to the payment in full of the
unpaid principal balance and accrued interest on the Purchase Note, then the
principal amount of the Purchase Note (retroactive to the Closing Date) shall be
increased by an amount equal to the product of (a) the aggregate amount of
federal and state capital gain realized by Seller or Mr. Reichard, as
applicable, in connection with the transactions contemplated by the Purchase
Agreement, multiplied by (b) the difference between (i) the combined federal and
State of Wisconsin capital gains tax rate as of the date of calculation, minus
(ii) the combined federal and State of Wisconsin capital gains tax rate of
20.425% as of the date of the Purchase Note. Any adjustment to the
principal amount of the Purchase Note shall be effected by increasing the amount
of the last payment due under the Purchase Note without affecting the next
regularly scheduled payment(s) under the Purchase Note.
A copy of
the Purchase Note is filed with this Current Report on Form 8-K as Exhibit 10.5
and is hereby incorporated herein by reference. The foregoing
description of such Purchase Note does not purport to be complete and is
qualified in its entirety by reference to the full text of such
document.
3
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Item
3.02.
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Unregistered
Sales of Equity Securities.
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Pursuant
to the Purchase Agreement, on the Closing Date the Company issued 800,000 shares
of the Company’s common stock (the “Subject Shares”) to Seller as a portion of
the purchase price for the Acquired Business.
The
Subject Shares were issued without registration under the Securities Act of
1933, as amended, or state securities laws, in reliance on the exemptions
provided by Section 4(2) of the Act and/or Regulation D promulgated thereunder
and in reliance on similar exemptions under applicable state
laws. Seller is an accredited investor and is acquiring the Subject
Shares for investment for Seller’s own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and Seller
has no present intention of selling, granting any participation in, or otherwise
distributing the same. The Subject Shares are “restricted” under
applicable U.S. federal and state securities laws. As such, Seller
has agreed to hold the Subject Shares indefinitely unless they are registered
with the Commission, and qualified by state authorities, or an exemption form
such registration and qualification requirements is available.
The
information contained in “Item 1.01 – Entry into a Material Definitive
Agreement” concerning the issuance of inducement options to Mr. Reichard, Ms.
Reichard and Mr. Jobe is incorporated herein by reference.
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers
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In
connection with the Purchase Agreement, on the Closing Date the Company entered
into an employment agreement (the “Employment Agreement”) with Jeffrey
Reichard. Pursuant to the Employment Agreement, Mr. Reichard will
serve as Vice President of Electronics Development of the Company. In
addition, on the Closing Date and pursuant to the Purchase Agreement Mr.
Reichard became a member of the Board of Directors of the Company and a member
of the Board of Directors of Acquisition Sub. Mr. Reichard will serve
as a Class I Director and his current term on the Board of Directors will expire
at the Company’s 2011 Annual Shareholders Meeting.
Under the
Employment Agreement Mr. Reichard is entitled to receive an annual salary of
$200,000 and is also eligible for all benefits of employment generally made
available to the senior executives of the Company. Pursuant to the
Employment Agreement, if the Company terminates Mr. Reichard’s employment other
than for “Cause” (as defined in the Employment Agreement) or “Disability” (as
defined in the Employment Agreement) or if Mr. Reichard terminates his
employment with the Company for “Good Reason” (as defined in the Employment
Agreement), Mr. Reichard will be entitled to a severance payment in an amount
equal to the greater of (a) twelve months of his annual base salary as then in
effect or (ii) continued payment of his base salary as then in effect through
the third anniversary of the Closing Date. In the event Mr. Reichard
terminates his employment with the Company other than for Good Reason or the
Company terminates his employment for Cause, Mr. Reichard will be entitled to
payment of any accrued but unpaid base salary through the date of termination,
plus all accrued and unpaid benefits in which Mr. Reichard participates through
the date of termination. In the event Mr. Reichard’s employment is
terminated pursuant to “Disability,” he will be entitled to a severance payment
in an amount equal to his base salary as then in effect from the date of
termination through the date on which benefits under the Company’s long-term
disability policy begin, but in no event longer than ninety days.
4
As both a
director and an executive officer of the Company, Mr. Reichard constitutes a
“related person” within the meaning of Item 404 of Regulation S-K. As
Mr. Reichard’s spouse, Ms. Reichard also constitutes a “related person” within
the meaning of Item 404 of Regulation S-K. Mr. Reichard is the sole owner of
Seller. As a result, Mr. and Ms. Reichard have material interests in
the transactions described in “Item 1.01 – Entry into a Material Definitive
Agreement” and “Item 2.03 – Creation of a Direct Financial Obligation or an
Obligation under an off-Balance Sheet Arrangement of a Registrant,” the
descriptions of which in such items are incorporated herein by
reference.
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Item
9.01.
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Financial
Statements and Exhibits.
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(a)
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Financial
Statements of Businesses Acquired
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The
financial statements of Seller required by this Item 9.01 will be filed by
amendment to this Current Report on Form 8-K not later than 71 days after the
date on which this Current Report on Form 8-K is required to be
filed.
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(b)
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Pro
Forma Financial Information
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The
unaudited pro forma financial information required by this Item 9.01 will be
filed by amendment to this Current Report on Form 8-K not later than 71 days
after the date on which this Current Report on Form 8-K is required to be
filed.
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(d)
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Exhibits
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The
exhibits required to be filed as a part of this Current Report on Form 8-K are
listed in the Exhibit Index attached hereto and incorporated herein by
reference.
5
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 hereunto duly
authorized.
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ZBB
Energy Corporation
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Dated: January
24, 2011
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By:
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/s/ Eric C.
Apfelbach
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Name:
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Eric
C. Apfelbach
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Title:
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President
and CEO
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EXHIBIT
INDEX
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Exhibit No.
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Exhibit Description
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10.1
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Asset
Purchase Agreement by and among ZBB Energy Corporation, DCDC Acquisition
Company LLC, Tier Electronics LLC and Jeffrey Reichard dated January 21,
2011
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10.2
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Registration
Rights Agreement between ZBB Energy Corporation and Tier Electronics LLC
dated January 21, 2011
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10.3
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Employment
Agreement between ZBB Energy Corporation and Jeffrey Reichard dated
January 21, 2011
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10.4
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Form
of Nonstatutory Option Agreements issued on January 21, 2011 to Jeff
Reichard, Joanne Reichard and Nathan Jobe
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10.5
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$1,350,000
Non-negotiable Promissory Note issued on January 21, 2011 to Tier
Electronics LLC
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