8-K

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): October 12, 2010

ZBB Energy Corporation

      (Exact name of registrant as specified in charter)

Wisconsin	001-33540	39-1987014
(State or other jurisdiction of incorporation)	(Commission   file number)	(IRS Employer Identification Number)

N93 W14475 Whittaker Way, Menomonee Falls, Wisconsin	53051
(Address of principal executive offices)	(Zip Code)

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.

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry Into a Material Definitive Agreement.

On October 12, 2010, ZBB Energy Corporation (the “Company”) entered into Stock Purchase Agreements with certain investors providing for the sale of a total of 3,329,466 shares of the Company’s common stock for an aggregate purchase price of $1,435,000 at a price per share equal to the closing price of the Company’s common stock on October 12, 2010.  $425,000 of these shares were purchased by members of the Company’s board of directors.

2,111,369 of the shares of common stock to be sold are being offered by the Company pursuant to an effective shelf registration statement on Form S-3, which was declared effective on May 13, 2009 (File No. 333-156941) (the “Registration Statement”).

The balance of the shares are being sold without registration under the Securities Act of 1933, as amended (the “Act”), 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. Since these shares have not been registered, they may not be offered or sold by the investors absent registration or an applicable exemption from registration requirements, such as the exemption afforded by Rule 144 under the Act.

The information contained in this Current Report on Form 8-K does not constitute an offer to sell or solicitation of offers to buy the shares or any other securities.

A copy of the form of Stock Purchase Agreement entered into with the investors purchasing registered shares is attached hereto as Exhibit 10.1. In addition to this Stock Purchase Agreement, Exhibits 5 and 23 are filed herewith in connection with the Registration Statement and are incorporated herein by reference.

A copy of the form of Stock Purchase Agreement entered into with the investors purchasing unregistered shares is attached hereto as Exhibit 10.2.

Item 3.02. Unregistered Sales of Equity Securities.

The information contained in “Item 1.01 – Entry Into a Material Definitive Agreement” is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

Exhibits

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.

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.

	ZBB Energy Corporation
Dated: October 12, 2010	By:	/s/ Eric C. Apfelbach
	Name: Eric C. Apfelbach
	Title:   President and CEO

EXHIBIT INDEX

Exhibit No.	Exhibit Description
5	Opinion of Godfrey & Kahn, S.C.
10.1	Form of Stock Purchase Agreement, dated October 12, 2010
10.2	Form of Stock Purchase Agreement, dated October 12, 2010
23	Consent of Godfrey & Kahn, S.C. (included as part of Exhibit 5)

EX-5

October 12, 2010

ZBB Energy Corporation

N93 W14475 Whittaker Way

Menomonee Falls, WI 53051

RE: Registration Statement on Form S-3 Filed by ZBB Energy Corporation

Gentlemen:

We have acted as special counsel to ZBB Energy Corporation, a Wisconsin corporation (the “Company”), in connection with the issuance and sale by the Company of 2,111,369 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (“Common Stock”).  In accordance with the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, the Company has prepared and filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-3 (Registration No. 333-156941) (the “Registration Statement”), including a base prospectus (the “Base Prospectus”) and a prospectus supplement dated October 12, 2010 relating to the Shares.  The Shares will be issued and sold pursuant to the terms of Stock Purchase Agreements dated as of October 12, 2010 (the “Purchase Agreements”) between the Company and the investors party thereto.

In our capacity as special counsel to the Company in connection with the registration of the Shares, we have examined: (i) the Registration Statement, the Base Prospectus and the Prospectus Supplement; (ii) the Company’s amended articles of incorporation and by-laws; (iii) certain resolutions of the Company’s board of directors; (iv) the Purchase Agreements; and (v) such other proceedings, documents and records as we have deemed necessary or advisable for purposes of this opinion.

In our examination of such documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies.  As to all matters of fact, we have relied on the representations and warranties and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on.

ZBB Energy Corporation

October 12, 2010

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Based on the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares have been duly authorized, and when issued and sold in accordance with the terms of the Purchase Agreements, will be validly issued, fully paid and non-assessable.

The foregoing opinion is limited to the laws of the United States and the State of Wisconsin, including the statutory provisions, all applicable provisions of the Constitution of the State of Wisconsin and reported judicial decisions interpreting these laws, each as in effect as of the date hereof, and no opinion is expressed with respect to such laws as subsequently amended, or any other laws, or any effect that such amended or other laws may have on the opinion expressed herein.  The foregoing opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.  The foregoing opinion is given as of the date hereof, and we undertake no obligation to advise you of any changes in applicable laws after the date hereof or of any facts that might change the opinion expressed herein that we may become aware of after the date hereof.

We consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K dated October 12, 2010, which is incorporated by reference in the Registration Statement, and to the reference to us under the heading “Legal Matters” in the Base Prospectus and the Prospectus Supplement.  In giving this consent, we do not admit that we are experts within the meaning of Section 11 of the Securities Act, or within the category of persons whose consent is required to be given under Section 7 of the Securities Act.

Very truly yours,

GODFREY & KAHN, S.C.

EX-10.1

STOCK PURCHASE AGREEMENT

             THIS STOCK PURCHASE AGREEMENT (the “Purchase Agreement”) is made and entered into as of October 12, 2010, by and between ZBB Energy Corporation, a Wisconsin corporation (“ZBB”), and _______________________ (“Purchaser”).

ARTICLE 1 - SALE OF STOCK

Section 1.1     Sale of Stock.  Subject to the terms and conditions of this Purchase Agreement, on the date hereof ZBB agrees to issue and sell to Purchaser, and Purchaser agrees to purchase from ZBB, ________ shares of ZBB’s Common Stock (the “Stock”) at a purchase price of $0.431 per share for an aggregate purchase price of $________.

Section 1.2     Closing.  Purchaser shall purchase the Stock at a closing that shall occur at a mutually agreed upon date within three (3) business days of the execution of this Purchase Agreement.  At the closing, Purchaser will pay the purchase price for the Stock to ZBB and ZBB will cause the Stock being purchased by Purchaser hereunder to be issued via the Depository Trust Company Deposit Withdrawal Agent Commission System (“DWAC”) in accordance with the instructions included on the signature page hereto.

ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF ZBB

ZBB hereby represents and warrants to Purchaser as follows:

Section 2.1      Organization.  ZBB is a corporation duly organized, validly existing and in good standing under the laws of the State of Wisconsin.

Section 2.2     Valid Issuance of Common Stock; Registration. The Stock is duly authorized, validly issued, fully paid and non-assessable and is free and clear of all liens and encumbrances other than restrictions on transfer imposed by applicable securities laws.  The issuance and sale of the Stock will be registered pursuant the Registration Statement on Form S-3 (No. 333-156941) originally filed by ZBB with the Securities and Exchange Commission (the “Commission”) on January 26, 2009 (the “Registration Statement”). The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission.

Section 2.3     Authority.  ZBB has all requisite corporate power and authority to enter into this Purchase Agreement and to consummate the transactions contemplated hereby.  This Purchase Agreement has been duly executed and delivered by ZBB, and constitutes the valid and binding obligation of ZBB, enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general principles of equity. 

ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF PURCHASER

Purchaser hereby represents and warrants to ZBB as follows:

Section 3.1     Authority.  Purchaser has all requisite power and authority to enter into this Purchase Agreement and to consummate the transactions contemplated hereby.  This Purchase Agreement has been duly executed and delivered by Purchaser, and constitutes the valid and binding obligation of Purchaser, enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

Section 3.2     Investment Experience.  Purchaser is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”). 

Section 3.3     Access to Information.  Purchaser has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Stock and has had full access to such other information concerning ZBB as Purchaser has requested.

ARTICLE 4- MISCELLANEOUS

Section 4.1     Governing Law.  This Purchase Agreement shall be governed in all respects by the laws of the State of Wisconsin (without reference to its conflicts of laws principles).

Section 4.2     Successors and Assigns.  Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.

Section 4.3     Entire Agreement.  This Purchase Agreement constitutes the full and entire understanding and agreement among the parties with regard to the subjects hereof and thereof. 

Section 4.4     Remedies.  Each of the parties to this Purchase Agreement will be entitled to enforce its rights under this Purchase Agreement specifically, to recover damages and costs (including reasonable attorneys’ fees) caused by any breach of any provision of this Purchase Agreement and to exercise all other rights existing in its favor.

Section 4.5     Counterparts.  This Purchase Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 

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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as of the day and year set forth in the first paragraph hereof.

ZBB ENERGY CORPORATION

By:

Name:

Title:

Address:

N93 W14475 Whittaker Way
Menomonee Falls, WI 53051
Attn: Scott Scampini

Purchaser

Signature of Purchaser

Title, if Purchaser is an entity

Address:

DWAC Instructions:

Broker Name:   

DTC Number: 

Account Number: 

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EX-10.2

STOCK PURCHASE AGREEMENT

             THIS STOCK PURCHASE AGREEMENT (the “Purchase Agreement”) is made and entered into as of October 12, 2010, by and between ZBB Energy Corporation, a Wisconsin corporation (“ZBB”), and _________________________  (“Purchaser”).

ARTICLE 1 - SALE OF STOCK

Section 1.1          Sale of Stock.  Subject to the terms and conditions of this Purchase Agreement, on the date hereof ZBB agrees to issue and sell to Purchaser, and Purchaser agrees to purchase from ZBB, ___________ shares of ZBB’s Common Stock (the “Stock”) at a purchase price of $0.431 per share for an aggregate purchase price of $_______.

Section 1.2          Closing.  Purchaser shall purchase the Stock at a closing that shall occur at a mutually agreed upon date within three (3) business days of the execution of this Purchase Agreement.  At the closing, Purchaser will pay the purchase price for the Stock to ZBB and ZBB will deliver to Purchaser a certificate representing the Stock being purchased by Purchaser hereunder.

ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF ZBB

ZBB hereby represents and warrants to Purchaser as follows:

Section 2.1           Organization.  ZBB is a corporation duly organized, validly existing and in good standing under the laws of the State of Wisconsin.

Section 2.2          Valid Issuance of Common Stock. The Stock is duly authorized, validly issued, fully paid and non-assessable and is free and clear of all liens and encumbrances other than restrictions on transfer imposed by applicable securities laws.

Section 2.3          Authority.  ZBB has all requisite corporate power and authority to enter into this Purchase Agreement and to consummate the transactions contemplated hereby.  This Purchase Agreement has been duly executed and delivered by ZBB, and constitutes the valid and binding obligation of ZBB, enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general principles of equity. 

ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF PURCHASER

            Purchaser hereby represents and warrants to ZBB as follows:

Section 3.1          Authority.  Purchaser has all requisite power and authority to enter into this Purchase Agreement and to consummate the transactions contemplated hereby.  This Purchase Agreement has been duly executed and delivered by Purchaser, and constitutes the valid and binding obligation of Purchaser, enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

Section 3.2          Purchase Entirely for Own Account.  The Stock is being acquired by Purchaser for investment for Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same.  Purchaser further represents that he does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant any participation with respect to any of the Stock.

Section 3.3          Investment Experience.  Purchaser is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”).  Purchaser is aware of ZBB’s business affairs and financial condition and has had access to and has acquired sufficient information about ZBB to reach an informed and knowledgeable decision to acquire the Stock.  Purchaser has such business and financial experience as is required to give him the ability to protect his own interests in connection with the purchase of the Stock.

Section 3.4          Ability to Bear Risk.  Purchaser is able to bear the economic risk of his investment in the Stock for an indefinite period of time and Purchaser understands that the Stock has not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available.  Purchaser acknowledges that he could bear a complete or significant loss of his investment in the Stock.

Section 3.5          Access to Information.  Purchaser has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of Stock and has had full access to such other information concerning ZBB as Purchaser has requested.

Section 3.6          Restricted Securities.  Purchaser understands that the Stock is “restricted” under applicable U.S. federal and state securities laws inasmuch as it is being acquired from ZBB in a transaction not involving a public offering and that, pursuant to these laws and applicable regulations, Purchaser must hold the Stock indefinitely unless it is registered with the Securities and Exchange Commission (the “SEC”), and qualified by state authorities, or an exemption from such registration and qualification requirements is available.  Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including the timing and manner of sale, the holding period for the Stock, and on requirements relating to ZBB which are outside of Purchaser’s control, and which ZBB is under no obligation and may not be able to satisfy.  In this connection, Purchaser represents that he is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.

Section 3.7           Legends.  Purchaser understands that the Stock, and any securities issued in respect thereof or exchange therefor, may bear the following legends:

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(a)         “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.  THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.”

(b)        Any legend required by the Blue Sky laws of any state to the extent such laws are applicable to the shares represented by the certificate so legended.

ARTICLE 4- MISCELLANEOUS

Section 4.1          Transfers in Violation of Purchase Agreement.  Any transfer or attempted transfer of any Stock in violation of any provision of this Purchase Agreement shall be null and void, and ZBB shall not record such transfer on its books or treat any purported transferee of such Stock as the owner of such securities for any purpose.

Section 4.2           Governing Law.  This Purchase Agreement shall be governed in all respects by the laws of the State of Wisconsin (without reference to its conflicts of laws principles).

Section 4.3          Successors and Assigns.  Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto; provided, that the rights of Purchaser under this Purchase Agreement shall not be assignable except in connection with a transfer of Stock expressly permitted by the terms of this Purchase Agreement.

Section 4.4           Entire Agreement.  This Purchase Agreement constitutes the full and entire understanding and agreement among the parties with regard to the subjects hereof and thereof.

Section 4.5          Remedies.  Each of the parties to this Purchase Agreement will be entitled to enforce its rights under this Purchase Agreement specifically, to recover damages and costs (including reasonable attorneys’ fees) caused by any breach of any provision of this Purchase Agreement and to exercise all other rights existing in its favor.

Section 4.6           Counterparts.  This Purchase Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as of the day and year set forth in the first paragraph hereof.

ZBB ENERGY CORPORATION

By:

Name:

Title:

Address:

N93 W14475 Whittaker Way
Menomonee Falls, WI 53051
Attn: Scott Scampini

Purchaser

Signature of Purchaser

Title, if Purchaser is an entity

Address:

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