exh10-1_debenture.htm


     

    
      

      

    

     

     

     

     

     

     

     

     

     

     

     

    EXHIBIT 10.1

     

    FORM OF DEBENTURE

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    THE
SECURITIES REPRESENTED BY THIS DEBENTURE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR APPLICABLE STATE SECURITIES LAWS (THE
“STATE ACTS”), AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR
OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER EXCEPT
UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF ITS COUNSEL OR
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO
COUNSEL FOR THE COMPANY, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN
VIOLATION OF THE ACT AND THE STATE ACTS.

    


    ENERGY
COMPOSITES CORPORATION

    A
Nevada Corporation

    


    CONVERTIBLE
DEBENTURE

    


     _____________
__, 2008

    NO.
_____

    


    ENERGY COMPOSITES CORPORATION., a
Nevada corporation (the “Company”), is
indebted and, for value received, promises to pay to the order of ______________ on
___________________ __, 2011 (the “Maturity Date”),
(unless this Debenture shall have been sooner called for prepayment as herein
provided), upon presentation of this Debenture, ___________________________________
Dollars ($______________) (the “Principal Amount”)
and to pay interest on the Principal Amount at a rate equal to Six Percent (6%)
per annum.

    


    The Company covenants, promises and
agrees as follows:

    


    1.           Interest. Interest which
shall accrue on the Principal Amount shall be payable in cash or in shares of
the Company’s common stock, $0.001 par value (the “Common Stock”),
valued at Two Dollars and Fifty Cents ($2.50) (the “Conversion Price”)
per share, in twelve (12) quarterly installments on April 1, July 1, October 1,
and January 1 in each and every calendar year until the Principal Amount and all
accrued and unpaid interest shall have been paid in full. If this Debenture
shall be issued on a date other than the first day of a quarter, the interest
payable shall be prorated upon the number of days of such quarterly period
during which this Debenture shall have been issued and outstanding. All accrued
and unpaid interest shall be payable on the Maturity Date. The first payment of
interest shall be made on January 1, 2008.

    


    2.           Prepayment.

    


    2.1.        Conditions to be
Satisfied.  This Debenture is subject to prepayment at the
option of the Company in whole or in part after the one year anniversary of the
date of this Debenture but prior to the Maturity Date at any time and from time
to time without penalty or premium, so long as all of the following conditions
(the “Prepayment
Conditions”) have been met:

     

    
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    (a)  The
Company’s Common Stock has traded above the Conversion Price per share for at
least twenty (20) consecutive trading days immediately preceding the Prepayment
Notice (defined below);

    


    (b)  The
average trading volume shall be at least one hundred thousand (100,000) shares
per day during such twenty (20)-consecutive day trading period; and

     

    (c)  The
shares of Common Stock issuable upon conversion of this Debenture shall be
eligible for resale pursuant to Rule 144 under the Securities Act of
1933.

     

    2.2.        Notice of
Prepayment.  The Company may exercise its right to prepay this
Debenture by giving notice (the “Prepayment Notice”)
thereof to the holder of this Debenture as it appears on the books of the
Company, which notice shall specify the terms of prepayment, the principal
amount of the Debenture to be prepaid (the “Prepayment Amount”)
and shall fix a date for prepayment (the “Prepayment Date”),
which date shall not be less than thirty (30) days nor more than forty-five (45)
days after the date of the Prepayment Notice.

     

    2.3.        Amounts to be
Paid.  On the Prepayment Date, the Company shall pay all
accrued and unpaid interest on the Debenture up to and including the Prepayment
Date and shall pay to the holder hereof a dollar amount equal to the Prepayment
Amount.

    


    3.           Conversion.

     

    3.1.        Holder’s Right to
Convert.  The holder of this Debenture shall have the right, at
such holder’s option, at any time, to convert all or any portion of this
Debenture into such number of fully paid and nonassessable shares of Common
Stock of the Company as shall be provided herein.

     

    3.2.        Notice of
Conversion.  The holder of this Debenture may exercise the
conversion right provided in this Section 3 by giving written notice (the “Conversion Notice”)
to the Company of the exercise of such right and stating the name or names in
which the stock certificate or stock certificates for the shares of Common Stock
are to be issued and the address to which such certificates shall be delivered.
The Conversion Notice shall be accompanied by the Debenture. The number of
shares of Common Stock that shall be issuable upon conversion of the Debenture
shall equal the Principal Amount to be converted divided by the Conversion
Price, rounded to the nearest whole share.

     

    3.3.        Conversion
Procedure.  Conversion shall be deemed to have been effected on
the date the Conversion Notice is given (the “Conversion Date”).
Within ten (10) business days after receipt of the Conversion Notice, the
Company shall issue and deliver by hand against a signed receipt therefor or by
United States registered mail, return receipt requested, to the address
designated by the holder of this Debenture in the Conversion Notice, a stock
certificate or stock certificates of the Company representing the number of
shares of Common Stock to which such holder is entitled and a check or cash in
payment of all interest accrued and unpaid on the Debenture up to and including
the Conversion Date.

     

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    3.4.        Company’s Right to
Convert.  This Debenture may be converted at the option of the
Company in whole or in part at any time and from time to time without penalty or
premium, so long as all of the Prepayment Conditions have been
met.  The Company may exercise its right to convert this Debenture by
giving notice thereof to the holder of this Debenture as it appears on the books
of the Company, which notice shall specify the principal amount of the Debenture
to be converted and shall fix a date for conversion, which date shall not be
less than thirty (30) days nor more than forty-five (45) days after the date of
the Conversion Notice.

     

    3.5.        Taxes. The Company shall pay
all documentary, stamp or other transactional taxes and charges attributable to
the issuance or delivery of shares of stock of the Company upon conversion;
provided, however, that the Company shall not be required to pay any taxes which
may be payable in respect of any transfer involved in the issuance or delivery
of any certificate for such shares in a name other than that of the record
holder of this Debenture.

     

    3.6.        Reservation of Shares. The
Company shall at all times reserve and keep available, free from preemptive
rights, unissued or treasury shares of Common Stock sufficient to effect the
conversion of this Debenture.

     

    4.           Adjustment of Conversion Price.
The number of shares of Common Stock issuable upon the conversion of this
Debenture and the Conversion Price shall be subject to adjustment as
follows:

    


    4.1.        Triggering Events for
Adjustment.  In the case the Company shall

     

    (a)           pay
a dividend on the Common Stock in Common Stock or securities convertible into,
exchangeable for or otherwise entitling a holder thereof to receive Common
Stock,

     

    (b)           declare
a dividend payable in cash on its Common Stock and at substantially the same
time offer its shareholders a right to
purchase new common stock (or securities convertible into, exchangeable for or
otherwise entitling a holder thereof to receive Common Stock) from proceeds of
such dividend (all Common Stock so issued shall be deemed to have been issued as
a stock dividend),

     

    (c)           subdivide
its outstanding shares of Common Stock into a greater number of shares of Common
Stock,

     

    (d)           combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock, or

     

    (e)           issue
by reclassification of its Common Stock of the Company,

    


    the
number of shares of Common Stock issuable upon conversion of this Debenture
immediately prior thereto shall be adjusted so that the holder of this Debenture
shall be entitled to receive after the happening of any of the events described
above that number and kind of shares as the holders would have received had such
Debenture been converted immediately prior to the happening of such event or any
record date with respect thereto.  Any adjustment made pursuant


     

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    to this
subdivision shall become effective immediately after the close of business on
the record date in the case of a stock dividend and shall become effective
immediately after the close of business on the record date in the case of a
stock split, subdivision, combination or reclassification.

    


    4.3.        Threshold for
Adjustment.  Any adjustment in the numbers of shares of Common
Stock issuable hereunder otherwise required to be made by this Section will not
have to be made if such adjustment would not require an increase or decrease in
one (1%) percent or more in the number of shares of Common Stock issuable upon
conversion of this Debenture.

    


    4.4.        Manner of
Adjustment.  Whenever the number of shares of Common Stock
issuable upon the conversion of this Debenture is adjusted, as herein provided,
the Conversion Price shall be adjusted (to the nearest cent) by multiplying such
Conversion Price immediately prior to such adjustment by a fraction of which the
numerator shall be the number of shares of Common Stock issuable upon the
conversion of this Debenture immediately prior to such adjustment, and of which
the denominator shall be the number of shares of Common Stock issuable
immediately thereafter.

     

    4.5.
  Reorganization, Reclassification,
Consolida­tion, Merger or Sale.  In case of any
reclassification, capital reorganization, consolidation, merger, sale of all or
substan­tially all of the Company’s assets to another Person or any other
change in the Common Stock of the Company, other than as a result of a
subdivision, combination, or stock dividend provided for in Section 4.1
above (any of which, a “Change Event”), then,
as a condition of such Change Event, lawful provision shall be made, and duly
executed documents evidencing the same from the Company or its successor shall
be delivered to the holder of this Debenture, so that the holder shall have the
right at any time prior to the Maturity Date to convert this Debenture into the
kind and amount of shares of stock and other securities and property receivable
in connection with such Change Event by a holder of the same number of shares of
Common Stock as were obtainable by the holder immediately prior to such Change
Event.  In any such case appropriate provisions shall be made with
respect to the rights and interest of the holder so that the provisions hereof
shall thereafter be applicable with respect to any shares of stock or other
securities and property deliverable upon conversion hereof, and appropriate
adjustments shall be made to the conversion price per share payable hereunder,
provided the aggregate conversion price shall remain the same.

     

    5.           Default.

     

    5.1.        Events of
Default.  The entire unpaid and unredeemed balance of the
Principal Amount and all Interest accrued and unpaid on this Debenture shall, at
the election of the holder, be and become immediately due and payable upon the
occurrence of any of the following events (a “Default
Event”):

     

    (a)           The
non-payment by the Company when due of principal and interest or of any other
payment as provided in this Debenture or with respect to any other Debenture
issued by the Company.

     

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    (b)           If
the Company (i) applies for or consents to the appointment of, or if there shall
be a taking of possession by, a receiver, custodian, trustee or liquidator for
the Company or any of its property; (ii) becomes generally unable to pay its
debts as they become due; (iii) makes a general assignment for the benefit of
creditors or becomes insolvent; (iv) files or is served with any petition for
relief under the Bankruptcy Code or any similar federal or state statute; (v)
has any judgment entered against it in excess of Fifty Thousand Dollars
($50,000) in any one instance or in the aggregate during any consecutive 12
month period or has any attachment or levy made to or against any of its
property or assets; (vi) defaults with respect to any evidence of indebtedness
or liability for borrowed money, or any such indebtedness shall not be paid as
and when due and payable; or (vii) has assessed or imposed against it, or if
there shall exist, any general or specific lien for any federal, state or local
taxes or charges against any of its property or assets.

    


    (c)           Any
failure by the Company to issue and deliver shares of Common Stock as provided
herein upon conversion of this Debenture.

     

    5.2.                      Remedies.  Each
right, power or remedy of the holder hereof upon the occurrence of any Default
Event as provided for in this Debenture or now or hereafter existing at law or
in equity or by statute shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Debenture or
now or hereafter existing at law or in equity or by statute, and the exercise or
beginning of the exercise by the holder or transferee hereof of any one or more
of such rights, powers or remedies shall not preclude the simultaneous or later
exercise by the holder hereof of any or all such other rights, powers or
remedies.

     

    6.           Failure to Act and Waiver. No
failure or delay by the holder hereof to insist upon the strict performance of
any term of this Debenture or to exercise any right, power or remedy consequent
upon a default hereunder shall constitute a waiver of any such term or of any
such breach, or preclude the holder hereof from exercising any such right, power
or remedy at any later time or times. By accepting payment after the due date of
any amount payable under this Debenture, the holder hereof shall not be deemed
to waive the right either to require payment when due of all other amounts
payable under this Debenture, or to declare a default for failure to effect such
payment of any such other amount.

     

    The failure of the holder of this
Debenture to give notice of any failure or breach of the Company under this
Debenture shall not constitute a waiver of any right or remedy in respect of
such continuing failure or breach or any subsequent failure or
breach.

     

    7.           Consent to Jurisdiction. The
Company hereby agrees and consents that any action, suit or proceeding arising
out of this Debenture may be brought in any appropriate court in the State of
Nevada, including the United States District Court for the District of Nevada,
or in any other court having jurisdiction over the subject matter, all at the
sole election of the holder hereof, and by the issuance and execution of this
Debenture the Company irrevocably consents to the jurisdiction of each such
court.

     

    8.           Transfer. This Debenture
shall be transferred on the books of the Company only by the registered holder
hereof or by his/her attorney duly authorized in writing or by delivery to the
Company of a duly executed Assignment substantially in the form attached hereto
as Exhibit A. 

     

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    The
Company shall be entitled to treat any holder of record of the Debenture as the
holder in fact thereof and shall not be bound to recognize any equitable or
other claim to or interest in this Debenture in the name of any other person,
whether or not it shall have express or other notice thereof, save as expressly
provided by the laws of Nevada.

     

    9.           Notices. All notices and
communications under this Debenture shall be in writing and shall be either
delivered in person or accompanied by a signed receipt therefor or mailed
first-class United States certified mail, return receipt requested, postage
prepaid, and addressed as follows: if to the Company, to 4400 Commerce Drive,
Wisconsin Rapids, Wisconsin 54494, and, if to the holder of this Debenture, to
the address of such holder as it appears in the books of the Company. Any notice
of communication shall be deemed given and received as of the date of such
delivery or mailing.

    


    10.           Governing
Law.  This Debenture shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, or, where
applicable, the laws of the United States.

    


    IN WITNESS WHEREOF, the Company has
caused this Debenture to be duly executed under its corporate seal.

     

    
      
        	 	ENERGY
      COMPOSITES CORPORATION	 
	 	 	 	 
	
                 

              	
                By:
      

              	 	 
	 	 	Samuel
      W. Fairchild	 
	 	 	Chief
      Executive Officer	 
	 	 	 	 


      

    

    


    


     

     

     

     

     

     

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    Exhibit
A

    ASSIGNMENT

     

    FOR VALUE RECEIVED, the undersigned
hereby assigns to ___________________, the three-year Unsecured Convertible
Debenture of ENERGY COMPOSITES CORPORATION, No. ________ and hereby irrevocably
appoints __________________________________, Attorney, to transfer said
debenture on the books of the within named corporation, with full power of
substitution in the premises.

    


    WITNESS my hand and seal this ____ day
of _______________, 20___.

     

     

    _________________________________

     

    _________________________________


    
 

     

     

     

     

     

     

     

     

     

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