UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 333-111582
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENCORE CLEAN ENERGY, INC.
____________________________________________________________________________
(Exact name of registrant as specified in its charter)
DELAWARE 65-0609891
________________________________________________________________________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Suite 305 - 1250 Homer Street
Vancouver, BC Canada V6B 1C6
_____________________________________________________________________
(604) 215-2500 (Address and telephone of principal executive offices)
2003 STOCK INCENTIVE PLAN
___________________________
(Full title of the plan)
Encore Clean Energy, Inc., Attention: DANIEL HUNTER, CEO
Suite 305 - 1250 Homer Street
Vancouver, BC Canada V6B 1C6
(604) 215-2500
_______________________________________________________________________________
(Name, address and telephone number, including area code, of agent for service)
Proposed Maximum Proposed Maximum Amount of
Title of Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered (1) Registered(2) Per Share Price Fee
Common Stock $0.34
$0.001 par value 2,000,000 per share $680,000 79.56
(1) This registration statement covers an additional 2,000,000 shares of the
Registrant's common stock issuable upon the exercise of options issued
under our 2003 Stock Incentive Plan (the "Plan") to directors, officers,
employees and eligible consultants or advisors of the Registrant. A total
of 4,000,000 shares are issuable under the Plan, 2,000,000 of which were
registered under the original Registration Statement (No. 333-111582)
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(2) This registration statement shall also cover an indeterminable number of
additional shares of common stock which may become issuable under the 2003
Stock Incentive Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of common stock.
(3) This offering price per share is calculated under Rule 457(h)(1) (reference
Rule 457(c)) as the offering price is not known; average of the bid and ask
prices as of March 3, 2006 (the last trading day immediately preceding the
filing of this registration statement). See 2003 Stock Incentive Plan,
attached hereto as Exhibit 10.2.
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EXPLANATORY NOTE
This Post-Effective Amendment to the Company's Registration Statement on Form
S-8 (No. 333-111582) (the "Registration Statement") filed with respect to the
Company's 2003 Stock Compensation Plan (Plan), is filed by the Company pursuant
to General Instruction E to SEC Form S-8 to reflect the registration of
additional securities of the same class of securities for which the Registration
Statement was originally filed to reflect the amendment of the Plan by the
Company's Board of Directors and the subsequent approval of the Plan as amended
at the Company's Annual Meeting of Stockholders held on October 5, 2005.
INCORPORATION BY REFERENCE
The contents of the Registration Statement (No. 333-111582) are hereby
incorporated by reference supplemented as follows.
Item 5. Interests of Named Experts and Counsel.
No expert or counsel named in this prospectus as having prepared or certified
any part of it or as having given an opinion upon the validity of the securities
being registered or upon other legal matters in connection with the registration
or offering of the common stock was employed on a contingency basis, or had, or
is to receive, in connection with the offering, a substantial interest, direct
or indirect, in the Company or any of its parents or subsidiaries. Nor was any
such person connected with the Company or nay of its parents or subsidiaries as
a promoter, managing or principal underwrite, voting trustee, director, officer,
or employee.
Item 6. Indemnification of Directors and Officers
At the Annual Meeting of Stockholders held on October 5, 2005, the stockholders
approved the reincorporation of the Company in the state of Nevada and new
Articles of Incorporation and Bylaws. The following summarizes the limitations
of liability and indemnification of Directors and Officers for the Company after
its reincorporation in Nevada. This supersedes the disclosure in the original
Registration Statement.
Limitation of Liability. Our articles of incorporation provide that any director
or officer shall not be personally liable to the Company or our stockholders for
damages as a result of any act or failure to act in his capacity as a director
or officer, unless:
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Item 6. Indemnification of Directors and Officers - continued
- It is proven that his act or failure to act constituted a breach of his
fiduciary duties and involved intentional misconduct, fraud, or a knowing
violation of law; or
- Such person is a director liable under Section 78.300 of the Nevada Revised
Statutes for the payment of an improper distribution by us to our stockholders.
Indemnification. Our articles of incorporation provide that the Company shall
indemnify anyone who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by us or in our
right, by reason of the fact that he is or was a director, officer, employee, or
agent of the Company, or is or was serving at the Company's request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit or proceeding if:
- The liability did not result from any act or failure to act which constituted
a breach of that person's fiduciary duties in his capacity as a director or
officer, and involved intentional misconduct, fraud, or a knowing violation of
law; or
- The person acted in good faith and in a manner which he reasonably believed to
be in, or not opposed to, our best interests, and with respect to any criminal
action or proceeding, he had no reasonable cause to believe his conduct was
unlawful.
Further, our articles of incorporation permit the Company to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by us or in our right, to
procure a judgment in our favor by reason of the fact that he is or was a
director, officer, employee, or agent of the Company, or is or was serving at
the Company's request as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with defense or settlement of the
action or suit, if:
- The liability did not result from any act or failure to act which constituted
a breach of that person's fiduciary duties in his capacity as a director or
officer, and involved intentional misconduct, fraud or a knowing violation of
law; or
- The person acted in good faith and in a manner which he reasonably believed to
be in, or not opposed to, our best interests.
However, we will be prohibited from indemnifying any person with respect to any
action, suit, or proceeding by a court of competent jurisdiction, if he has been
finally adjudged to be liable to us, unless, and only to
the extent that, the court of competent jurisdiction determines upon application
that the person is fairly and reasonably entitled to indemnification in view of
all the circumstances of the case.
Our bylaws contain similar indemnification and limitation of liability
provisions.
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Item 8. Exhibits.
Exhibit
Number Description of Document
--------- ----------------------------------------------------------------------
5.1 Opinion of Klehr, Harrison, independent legal counsel, regarding the
due authorization and valid issuance of the shares of common stock,
with consent to use. Incorporated by reference, filed with S-8
Registration Statement No 333-111582, filed December 29, 2003.
10.2 2003 Stock Incentive Plan, as approved by the Stockholders at the
Company's Annual Meeting of Stockholders on October 5, 2005. Filed
herewith.
23.1 Consent of KPMG LLP, Independent Auditors. Incorporated by reference,
filed with 10K-SB Annual Report filed May 17, 2005.
24.1 Power of Attorney (included on the signature page of this registration
statement).
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 this Post-Effective Amendment to 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 Vancouver, Province of
British Columbia, Canada, on this 3rd day of March, 2006.
ENCORE CLEAN ENERGY, INC.
By: /s/ Daniel B. Hunter
-------------------------------------------------------
DANIEL B. HUNTER,
Chief Executive Officer, Chief Financial Officer
(Principal Executive Officer and Principal Accounting Officer)
Director
Date: March 3, 2006
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
listed below and on the date indicated and each of the undersigned persons, in
any capacity, hereby appoints Daniel B. Hunter as attorneys-in-fact of the
undersigned, with full power of substitution and resubstitution, to sign this
Registration Statement and any and all amendments (including post-effective
amendments and any registration statements pursuant to Rule 462(b) under the
Securities Act of 1933) and supplements and exhibits thereto and to file the
same, and other documents in connection therewith, with the Securities and
Exchange Commission, and authorizes each of them to do and perform each and
every act necessary to be done in connection therewith.
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By: /s/ Daniel B. Hunter
-------------------------------------------------------
DANIEL B. HUNTER,
Chief Executive Officer, Chief Financial Officer
(Principal Executive Officer and Principal Accounting Officer)
Director
Date: March 3, 2006
By: /s/ Donald James Mackenzie
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DONALD JAMES MACKENZIE,
President, Secretary
Director
Date: March 3, 2006
By: /s Lawrence M. Shultz
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LAWRENCE M. SHULTZ
Director
Date: March 3, 2006
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