Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - EnSync, Inc. | v176566_8k.htm |
| EX-4 - FORM OF WARRANT - EnSync, Inc. | v176566_ex4.htm |
| EX-10.2 - PLACEMENT AGENT AGREEMENT - EnSync, Inc. | v176566_ex10-2.htm |
| EX-10.1 - SECURITIES PURCHASE AGREEMENT - EnSync, Inc. | v176566_ex10-1.htm |
March 9,
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 up to
2,243,750 shares (the “Shares”) of the Company’s common stock, $0.01 par value
per share (“Common Stock”), warrants to purchase up to 1,121,875 shares of
Common Stock (the “Warrants”) and shares of Common Stock issuable upon exercise
of the Warrants (the “Underlying Shares” and, together with the Warrants and the
Shares, the “Securities”). 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 March 8, 2010 (the “Prospectus Supplement”)
relating to the Securities. The Securities will be sold pursuant to
the terms of a securities purchase agreement (the “Purchase Agreement”) between
the investors and the Company. The Warrants will be subject to the
terms of a common stock purchase warrant (the “Common Stock Purchase
Warrant”).
In our
capacity as special counsel to the Company in connection with the registration
of the Securities, we have examined: (i) the Registration Statement, Base
Prospectus and 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 Agreement; (v) the Common Stock Purchase Warrant;
and (vi) 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 statements of fact made in the documents so reviewed,
and we have not independently established the facts so relied on.
Based on
the foregoing and subject to the limitations, qualifications and assumptions set
forth herein, we are of the opinion that:
1. The
Shares have been duly authorized, and when issued and sold in accordance with
the terms of the Purchase Agreement, will be validly issued, fully paid and
non-assessable.
2. The
Warrants, when issued pursuant to the terms of the Purchase Agreement and the
terms of the Common Stock Purchase Warrant and when each document is duly
executed and delivered by the Company, will constitute valid and legally binding
obligations of the Company.
3. The
Underlying Shares, when issued and paid for upon exercise of the Warrants, and
in accordance with the terms of the Common Stock Purchase Warrant, will be
validly issued, fully paid and non-assessable.
The
foregoing opinions are limited to the laws of the United States, the State of
Wisconsin and, as to the Warrants, the laws of the State of New York, each as in
effect as of the date of this opinion, 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. Our opinions are
also subject to the following exceptions, limitations and qualifications:
(i) the effect of applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws relating to or affecting
creditors’ rights and remedies; and (ii) the effect of general principles
of equity, whether raised in an action at law or in equity (including the
possible unavailability of specific performance or injunctive relief), concepts
of materiality, reasonableness, good faith and fair dealing, and the discretion
of the court before which any proceeding therefor may be brought. We
express no opinion concerning the enforceability of: (a) provisions
providing for indemnification, exculpation or contribution; (b) any provision
requiring the payment of attorneys’ fees, where such payment is contrary to law
or public policy; (c) provisions imposing liquidated damages, default
interest, late charges, monetary penalties, make-whole premiums, or other
economic remedies to the extent such provisions are deemed to constitute a
penalty; (d) consents to, or restrictions upon, governing law,
jurisdiction, venue, arbitration, remedies or judicial relief;
(e) provisions for exclusivity, election or cumulation of rights or
remedies; (f) provisions authorizing or validating conclusive or
discretionary determinations; or (g) compliance with laws relating to
permissible interest rates.
We
consent to the filing of this opinion as an exhibit to the Company’s Current
Report on Form 8-K dated March 8, 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,
/s/
Godfrey & Kahn, S.C.
GODFREY
& KAHN, S.C.