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As
filed on December 15, 2009
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Registration
No. 333-__________
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ENERGY
COMPOSITES CORPORATION
(Exact
name of registrant as specified in its charter)
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Nevada
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88-0409170
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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4400
Commerce Drive, Wisconsin Rapids, Wisconsin
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54494
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(Address
of principal executive offices)
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(Zip
Code)
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ENERGY
COMPOSITES CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full
title of the Plan)
Kenneth
Iwinski, General Counsel and Secretary
Energy
Composites Corporation
4400
Commerce Drive
Wisconsin
Rapids, Wisconsin 54494
(Name and
address of agent for service)
(715)
421-2060
(Telephone
number, including area code, of agent for service)
Copy
to:
Fay
M. Matsukage, Esq.
Dill
Dill Carr Stonbraker & Hutchings, P.C.
455
Sherman Street, Suite 300
Denver,
CO 80203
(303)
777-3737
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer
o
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Accelerated
filer
o
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Non-accelerated
filer
o
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Smaller
reporting company
þ
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to be Registered (1)
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Proposed
Maximum Offering Price per Share (2)
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Proposed
Maximum Aggregate Offering Price (2)
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Amount
of Registration Fee
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Common
Stock, $0.001 par value
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1,000,000
Shares
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$4.00
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$4,000,000
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$223.20
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(1) The
Energy Composites Corporation Employee Stock Purchase Plan authorizes the
issuance of a maximum of 1,000,000 common shares in the capital of Energy
Composites Corporation. All of these common shares are being
registered under this Form S-8 Registration Statement. Pursuant to
Rule 416 under the Securities Act, this Registration Statement shall also cover
any additional shares of the common stock of the Company which become issuable
by reason of any stock split, stock dividend, recapitalization, or other similar
transaction effected without the Registrant’s receipt of consideration which
results in an increase in the number of the outstanding shares of the
Registrant’s common stock.
(2) The
price is estimated in accordance with Rule 457(c) and (h) under the Securities
Act of 1933, as amended, solely for the purpose of calculating the registration
fee, based on the average of the bid and asked prices of the common stock as
reported on the OTC Bulletin Board on December 10, 2009.
Explanatory
Note
We are
filing this registration statement on Form S-8 for the purpose of registering
1,000,000 shares of our Common Stock, $0.001 par value per share (“Common
Stock”), issuable under our Employee Stock Purchase Plan. As a matter
of policy adopted by our Board of Directors, no officer or director of the
company may participate in the Employee Stock Purchase Plan.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by
Reference.
Energy
Composites Corporation (the “Registrant”) hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the “SEC”):
(a) The
Registrant’s Annual Report on Form 10-K filed with the SEC on March 31, 2009 for
the year ended December 31, 2008;
(b) The
Registrant’s Quarterly Reports on Form 10-Q filed with the SEC on May 15, 2009,
August 14, 2009, and November 13, 2009 for the quarters ended March 31, 2009,
June 30, 2009 and September 30, 2009;
(c) The
Registrant’s Current Reports on Form 8-K filed with the SEC on January 6, 2009,
January 26, 2009, January 26, 2009, June 5, 2009, and September 4,
2009;
(d) our
definitive proxy statement on Schedule 14A relating to the annual meeting of
stockholders held on June 2, 2009, as filed with the SEC on April 30, 2009;
and
(e) The
description of the Registrant’s outstanding Common Stock contained in Part I,
Item 8 of the Registration Statement on Form 10-SB12G filed on January 11, 2007,
Commission File No. 0-52397.
All
documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item
4. Description of
Securities.
Not
applicable.
Item
5. Interests of Named Experts and
Counsel.
Not
applicable.
Item
6. Indemnification of Directors
and Officers.
Under the
corporate laws of the State of Nevada and Registrant’s Articles of
Incorporation, the Registrant has broad powers to indemnify its directors and
officers against liabilities they may incur in such capacities, including
liabilities under the Securities Act of 1933, as amended (the “Securities
Act”). The Registrant’s Bylaws also provide for mandatory
indemnification of directors and executive officers, and permissive
indemnification of employees and agents, to the fullest extent permissible under
Nevada law. Insofar as indemnification for liabilities
arising
under the Securities Act may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, we have been
informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
Item
7. Exemption from Registration
Claimed.
Not
applicable.
Item
8. Exhibits.
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Exhibit
Number
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Exhibit
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4.1
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Employee
Stock Purchase Plan.
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5.1
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Opinion
of Dill Dill Carr Stonbraker & Hutchings, P.C.
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23.1
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Consent
of Moquist Thorvilson Kaufmann Kennedy & Pieper LLC, Independent
Registered Public Accounting Firm.
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23.2
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Consent
of Dill Dill Carr Stonbraker & Hutchings, P.C. (included in Exhibit
5).
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24
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Power
of Attorney (included on signature
page).
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Item
9. Undertakings.
A. The
undersigned Registrant hereby undertakes:
(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 1933 Act, (ii) to reflect in the
prospectus any facts or events arising after the effective date of this
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 this Registration Statement, and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; provided, however, that clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the SEC by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference in this Registration
Statement;
(2) that
for the purpose of determining any liability under the 1933 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;
and
(3) to
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
B. The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the 1933 Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated
by reference in this 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.
C.
Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the indemnification provisions summarized in Item 6 or otherwise,
the Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 City of Wisconsin Rapids, State of Wisconsin on
this 15th day of December, 2009.
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ENERGY
COMPOSITES CORPORATION
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Dated: December
15, 2009
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By:
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/s/ Samuel W. Fairchild
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Samuel
W. Fairchild, Chief Executive
Officer
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POWER OF
ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS:
That the
undersigned officers and directors of Energy Composites Corporation, a Nevada
corporation, do hereby constitute and appoint Samuel W. Fairchild the lawful
attorney-in-fact and agent with full power and authority to do any and all acts
and things and to execute any and all instruments which said attorney and agent
determines may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorney and agent shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF
, each of
the undersigned has executed this Power of Attorney as of the date
indicated.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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Signature
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Title
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Date
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/s/
Samuel W. Fairchild
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Chief
Executive Officer and Director (Principal Executive
Officer)
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December 15, 2009
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Samuel
W. Fairchild
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/s/
Jeffrey S. Keuntjes
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Vice
President - Finance (Principal Financial and Accounting
Officer)
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December 15, 2009
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Jeffrey
S. Keuntjes
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/s/
Jamie Lee Mancl
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President
and Director
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December
14, 2009
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Jamie
Lee Mancl
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/s/
Jennifer Lynn Mancl
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Vice
President and Director
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December
15, 2009
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Jennifer
Lynn Mancl
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/s/
Daniel P. Wergin
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Director
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December
14, 2009
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Daniel
P. Wergin
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/s/
Thomas J. Klismith
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Director
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December
14, 2009
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Thomas
J. Klismith
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/s/
Timothy Sherlock
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Director
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December
14, 2009
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Timothy
Sherlock
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/s/
James F. Miller
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Director
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December
14, 2009
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James
F. Miller
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EXHIBIT
INDEX
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Exhibit
Number
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Exhibit
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4.1
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Employee
Stock Purchase Plan.
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5.1
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Opinion
of Dill Dill Carr Stonbraker & Hutchings, P.C.
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23.1
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Consent
of Moquist Thorvilson Kaufmann Kennedy & Pieper LLC, Independent
Registered Public Accounting Firm.
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23.2
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Consent
of Dill Dill Carr Stonbraker & Hutchings, P.C. (included in Exhibit
5).
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24
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Power
of Attorney (included on signature
page).
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