S-8 1 zbbs8.htm

As filed with the Securities and Exchange Commission on April 16, 2008

Registration No. 333-_____

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

ZBB ENERGY CORPORATION

(Exact Name of Registrant as Specified in its Charter)


Wisconsin	39-1987014
(State of Incorporation)	(I.R.S. Employer Identification No.)

N93 W14475 Whittaker Way
Menomonee Falls, Wisconsin	53051
(Address of Principal Executive Offices)	(Zip Code)

____________________________________

2002 Stock Option Plan of ZBB Energy Corporation

2007 Equity Incentive Plan of ZBB Energy Corporation

____________________________________

Robert J. Parry

ZBB Energy Corporation

N93 W14475 Whittaker Way

Menomonee Falls, Wisconsin 53051

(262) 253-9800

(Name, address and telephone number, including area code, of agent for service)

With copies to:

Dennis F. Connolly
Michael J. Conmey

Godfrey & Kahn, S.C.

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 273-3500


Large accelerated filer ¨	Accelerated filer ¨
Non-accelerated filer ¨	Smaller reporting company þ
(Do not check if a smaller reporting company)

CALCULATION OF REGISTRATION FEE


Title of securities to be registered	Amount to be registered	Proposed maximum offering price per share (1)	Proposed maximum aggregate offering price (1)	Amount of registration fee

Common Stock,

$0.01 par value per share

2,079,107

N/A

$6,798,679.89

$267.19


(1)	The registration fee was calculated pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The registration fee is based on the average high and low price of a share of ZBB Energy Corporation common stock on April 10, 2008 on the American Stock Exchange.

PART I

The documents containing the information specified in Part I of this Form S-8 Registration Statement (“Registration Statement”) will be sent or given to participants in the plans listed on the cover of this Registration Statement as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference

The following documents are incorporated by reference in this Registration Statement (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended, which is referred to herein as the “Exchange Act”):


	(a)	The Registrant’s Annual Report on Form 10-KSB, filed October 10, 2007 (File No. 001-33540)

	(b)	The Registrant’s Quarterly Report on Form 10-QSB, filed November 15, 2007 (File No. 001-33540); the Registrant’s Quarterly Report on Form 10-QSB, filed February 14, 2008 (File No. 001-33540)

	(c)	The Registrant’s Current Report on Form 8-K dated November 13, 2007 (File No. 001-33540); the Registrant’s Current Report on Form 8-K dated December 17, 2007 (File No. 001-33540)

	(d)	The description of the common stock set forth in the Registrant’s Registration Statement on Form 8-A12B filed June 13, 2007 pursuant to Section 12 of the Exchange Act, including any amendment or report filed with the SEC for the purpose of updating this description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.

Item 6. Indemnification of Directors and Officers

Sections 180.0850 to 180.0859 of the Wisconsin Statutes require a corporation to indemnify any director or officer who is a party to any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person. A corporation's obligation to indemnify any such person includes the obligation to pay any judgment, settlement, penalty, assessment, forfeiture or fine, including any excise tax assessed with respect to an employee benefit plan, and all reasonable expenses including fees, costs, charges, disbursements, attorney's and other expenses except in those cases in which liability was incurred as a result of the breach or failure to perform a duty which the director or officer owes to the corporation and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation of criminal law, unless the person has reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful; (iii) a transaction from which the person derived an improper personal profit; or (iv) willful misconduct.

Unless otherwise provided in a corporation's articles of incorporation or by-laws or by written agreement, an officer or director seeking indemnification is entitled to indemnification if approved in any of the following manners: (i) by majority vote of a disinterested quorum of the board of directors, or if such quorum of disinterested

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directors cannot be obtained, by a majority vote of a committee of two or more disinterested directors; (ii) by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by affirmative vote of shareholders; (v) by a court; or (vi) with respect to any additional right to indemnification granted, by any other method permitted in Section 180.0858 of the Wisconsin Statutes.

Reasonable expenses incurred by a director or officer who is a party to a proceeding may be reimbursed by a corporation at such time as the director or officer furnishes to the corporation written affirmation of his good faith belief that he has not breached or failed to perform his duties and a written undertaking to repay any amounts advanced if it is determined that indemnification by the corporation is not required.

The indemnification provisions of Sections 180.0850 to 180.0859 are not exclusive. A corporation may expand an officer's or director's right to indemnification (i) in its articles of incorporation or by-laws; (ii) by written agreement between the director or officer and the corporation; (iii) by resolution of its board of directors; or (iv) by resolution of a majority of all of the corporation's voting shares then issued and outstanding.

As permitted by Section 180.0858, the Registrant has adopted indemnification provisions in its By-Laws which closely track the statutory indemnification provisions with certain exceptions. In particular, Article V of the Registrant’s By-Laws provides (i) that an individual shall be indemnified unless it is proven by a final judicial adjudication that indemnification is prohibited, and (ii) payment or reimbursement of expenses, subject to certain limitations, will be mandatory rather than permissive.

The Registrant’s officers and directors are also covered by officers' and directors' liability insurance.

Item 8. Exhibits


	4.1	2002 Stock Option Plan of ZBB Energy Corporation, incorporated by reference to the Exhibit 10.16 of the Registrant’s Registration Statement on Form SB-2 (File No. 333-138243) filed with the Securities and Exchange Commission on October 27, 2006

	4.2	2007 Equity Incentive Plan of ZBB Energy Corporation, incorporated by reference to the Registrant’s Proxy Statement relating to its 2007 Annual Meeting of Shareholders (File No. 001-33540) filed with the Securities and Exchange Commission on November 16, 2007

	5.1	Opinion of Godfrey & Kahn, S.C. regarding legality of the common stock being registered

	23.1	Consent of Godfrey & Kahn, S.C. (included in Exhibit 5.1 hereto)

	23.2	Consent of PKF

	24.1	Powers of Attorney

Item 9. Undertakings *

The Registrant hereby undertakes:

(a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i)

To include any prospectus required by section 10(a)(3) of the Securities Act;

(ii)

To 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

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(iii)

To include any 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 section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act, 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.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.

(b) That, for the purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and each filing of the plan's annual report pursuant to section 15(d) of the Exchange Act) 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.

(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 5 of this Registration Statement, 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 Securities 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 action, 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 Securities Act and will be governed by the final adjudication of such issue.

* Paragraphs correspond to Item 512 of Regulation S-K.

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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 Village of Menomonee Falls, State of Wisconsin, on April 14, 2008.

ZBB ENERGY CORPORATION

By: /s/ Robert J. Parry

Robert J. Parry

Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:


Signature	Title	Date

/s/ Robert J. Parry Robert J. Parry	Chief Executive Officer (Principal Executive Officer)	April 14, 2008

/s/ Scott W. Scampini Scott W. Scampini	Chief Financial Officer (Principal Financial Officer)	April 14, 2008

Directors:

Robert J. Parry, William A. Mundell, Richard A. Payne, Manfred E. Birnbaum

*By:

/s/ Robert J. Parry

Robert J. Parry

As Attorney-in-Fact*

Date: April 14, 2008

*Pursuant to authority granted by powers of attorney, copies of which are filed herewith.

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EXHIBIT INDEX

Exhibits

4.1

2002 Stock Option Plan of ZBB Energy Corporation, incorporated by reference to the Exhibit 10.16 of the Registrant’s Registration Statement on Form SB-2 (File No. 333-138243) filed with the Securities and Exchange Commission on October 27, 2006

4.2

2007 Equity Incentive Plan of ZBB Energy Corporation, incorporated by reference to the Registrant’s Proxy Statement relating to its 2007 Annual Meeting of Shareholders (File No. 001-33540) filed with the Securities and Exchange Commission on November 16, 2007

5.1

Opinion of Godfrey & Kahn, S.C. regarding legality of the common stock being registered

23.1

Consent of Godfrey & Kahn, S.C. (included in Exhibit 5.1 hereto)

23.2

Consent of PKF

24.1

Powers of Attorney

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