Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - COMVERGE, INC. | form8-k11192009.htm |
| EX-99.1 - PRESS RELEASE - COMVERGE, INC. | exhibit99-1.htm |
| EX-1.1 - UNDERWRITING AGREEMENT - COMVERGE, INC. | exhibit1-1ua.htm |
|
1500
SAN JACINTO CENTER
98
SAN JACINTO BLVD.
AUSTIN,
TEXAS
78701-4078
TEL
+1 512.322.2500
FAX
+1 512.322.2501
www.bakerbotts.com
|
|
ABU
DHABI
AUSTIN
BEIJING
DALLAS
DUBAI
HONG
KONG
HOUSTON
LONDON
MOSCOW
NEW
YORK
PALO
ALTO
RIYADH
WASHINGTON
|
November
19, 2009
Comverge,
Inc.
120 Eagle
Rock Avenue, Suite 190
East
Hanover, New Jersey 07936
Ladies
and Gentlemen:
In
connection with the issuance by Comverge, Inc., a Delaware corporation (the
“Company”), of up to 2,760,000 shares (the “Shares”) of its common stock, par
value $0.001 per share, pursuant to (i) its Registration Statement on Form S-3
(Registration No. 333-161400) (the “Registration Statement”), which was filed by
the Company with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Act”), and (ii) the related
prospectus dated August 17, 2009, as supplemented by the prospectus supplement
relating to the sale of the Shares dated November 19, 2009 (as so supplemented,
the “Prospectus”), as filed by the Company with the Commission pursuant to Rule
424(b) under the Act, certain legal matters with respect to the Shares are being
passed upon for the Company by us. At your request, this opinion is
being furnished to you for filing as Exhibit 5.1 to the Company’s Current Report
on Form 8-K to be filed with the Commission on the date hereof (the “Form
8-K”).
In our
capacity as your counsel in the connection referred to above, we have examined
originals, or copies certified or otherwise identified, of (i) the Company’s
Fifth Amended and Restated Certificate of Incorporation and Second Amended and
Restated Bylaws, each as amended to date; (ii) the Underwriting Agreement dated
November 19, 2009 by and among the Company and the underwriters named therein,
for whom RBC Capital Markets Corporation, Lazard Capital Markets LLC, Robert W.
Baird & Co. Incorporated and Stephens Inc. are acting as representatives,
relating to the issuance and sale of the Shares (the “Underwriting Agreement”);
(iii) the Registration Statement and the Prospectus and (iv) corporate records
of the Company, certificates of public officials and of representatives of the
Company, statutes and other instruments and documents as a basis for the
opinions hereinafter expressed. In giving this opinion, we have
relied on certificates of officers of the Company and of public officials with
respect to the accuracy of the material factual matters contained in such
certificates and we have assumed, without independent investigation, that all
signatures on documents we have examined are genuine, that all documents
submitted to us as originals are accurate and complete, that all documents
submitted to us as certified or photostatic copies are true and correct copies
of the originals thereof, and that all information submitted to us is accurate
and complete. We have also assumed that all Shares will be offered
and sold in the manner described in the Registration Statement and the
Prospectus and in accordance with the terms of the Underwriting
Agreement.
On the
basis of the foregoing, and subject to the assumptions, limitations and
qualifications set forth herein, we are of the opinion that the Shares have been
duly authorized by all necessary corporate action on the part of the Company
and, when issued and delivered against payment of the purchase price therefor in
accordance with the Underwriting Agreement, will be validly issued, fully paid
and nonassessable.
This
opinion is limited in all respects to the General Corporation Law of the State
of Delaware and applicable federal law.
We hereby
consent to the filing of this opinion with the Commission as Exhibit 5.1 to the
Form 8-K. We also consent to the references to our Firm under the
headings “Legal Matters” in the Prospectus. In giving this consent,
we do not hereby admit that we are within the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ BAKER BOTTS
L.L.P.