Attached files
| file | filename |
|---|---|
| EX-5.1 - LETTER OF OPINION - ENER1 INC | v230763_ex5-1.htm |
| EX-4.1 - REGISTRATION RIGHTS AGREEMENT - ENER1 INC | v230763_ex4-1.htm |
| EX-10.1 - COMMON STOCK PURCHASE AGREEMENT - ENER1 INC | v230763_ex10-1.htm |
| EX-99.1 - PRESS RELEASE - ENER1 INC | v230763_ex99-1.htm |
| 8-K - CURRENT REPORT - ENER1 INC | v230763_8k.htm |
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350
Las Olas Boulevard
Las
Olas Centre II, Suite 1150
P.O.
Box 30310
Fort
Lauderdale, FL 33303-30310
954.462.4150
Main
954.462.4260
Fax
www.ralaw.com
|
August 3,
2011
Aspire
Capital Fund LLC
155 North
Wacker Drive, Suite 1600
Chicago,
Illinois 60605
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|
Re:
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Ener1,
Inc. Legal Opinion
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Ladies
and Gentlemen:
We have
acted as special Florida counsel to Ener1, Inc., a Florida corporation (the
“Company”),
in connection with the execution and delivery by the Company of the Common Stock
Purchase Agreement, dated as of August 3, 2011 (the “Agreement”),
between the Company and Aspire Capital Fund LLC (the “Buyer”). This
opinion is delivered pursuant to Section
7(d) of the Agreement. Capitalized terms not otherwise defined herein are
defined as set forth in the Agreement.
In
rendering the opinions set forth herein, we have examined and relied solely on
the following documents (the "Reviewed Documents"), and except for our
examination of the Reviewed Documents, have made no independent inquiry as to
the facts asserted to be true and correct in the Reviewed Documents and our
opinions are qualified in all respects by the scope of such document
examination:
(a) the
Agreement;
(b) Registration
Rights Agreement;
(c) the
Bylaws of the Company;
(d) the
Articles of Incorporation of the Company;
(e) a
Certificate of Active Status with respect to the Company;
(f) a
Certificate of the Chief Executive Officer of the Company certifying that the
written resolution of the Board of Directors approving the transactions
contemplated pursuant to the Agreement, a copy of which is attached to the
Certificate, were duly adopted by the Board of Directors and have not since been
amended, modified or repealed; and
(g) a
Certificate of the Company, dated as of the date hereof, with respect to various
factual matters (the “Officer’s Certificate”).
Items (a)
through (b) are sometimes referred to herein, collectively, as the “Transaction
Documents.” Items (c) through (g) above are sometimes referred to
herein, collectively, as the “Governing Documents.”
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New
York
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Cleveland
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Toledo
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Akron
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Columbus
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Cincinnati
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Washington,
D.C.
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Tallahassee
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Orlando
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Fort
Myers
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Naples
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Fort
Lauderdale
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Aspire
Capital Fund LLC
August
__, 2011
Page
2
In
rendering the opinions set forth herein we have assumed, without any independent
investigation: (i) the accuracy and completeness of all documents and records
that we have reviewed; (ii) the genuineness of all signatures contained in, and
the authenticity of, the documents submitted to us as originals; (iii) the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or reproduced copies; (iv) that all individuals executing
documents individually or on behalf of any of the parties thereto are in fact
the individuals they purport to be; and (v) the legal capacity of all natural
persons.
Except to
the extent we specifically and expressly opine on any such matters in this
opinion, in our examination of the Reviewed Documents and in rendering the
following opinions we have with your consent (and in addition to the assumptions
contained elsewhere in this opinion) assumed without any investigation, except
as specifically indicated herein, and we express no opinion regarding, each of
the following: (a) the due authorization of each of the Transaction Documents by
the parties thereto (other than the Company); (b) the due execution and delivery
of the Transaction Documents by the parties thereto (other than the Company);
(c) that each of the parties to the Transaction Documents (other than the
Company) has the full legal power and authority to execute and deliver the
Transaction Documents to which they are a party; (d) that the Transaction
Documents constitute the legal, valid and binding obligations of the parties
thereto (other than the Company) enforceable in accordance with their respective
terms against each of them; (e) that all parties to the Transaction Documents
(other than the Company) are duly organized, validly existing and in good
standing in the jurisdictions in which they are organized and all parties to the
Transaction Documents are duly qualified to transact business as foreign
corporations and that each is in good standing in the jurisdictions in which the
ownership of its properties or the conduct of its business requires such
qualification; (f) that the conduct of the parties to the Transaction Documents
has complied with, and the transactions to be effected pursuant to the
Transaction Documents will comply with, all standards of good faith, fairness,
public policy and conscionability required by laws; (g) that with respect to the
Transaction Documents sufficient consideration has been received by each of the
parties in respect of their respective obligations thereunder; (h) that there
are no agreements or understandings among the parties, written or oral, and
there is no usage of trade or course of prior dealing among the parties that
would, in either case, define, supplement or qualify the terms of the
Transaction Documents; (i) the fulfillment of any timely compliance by the
parties thereto with all the terms and conditions of the Transaction Documents
and the accuracy of all factual matters addressed by representations and
warranties contained therein; (j) the accuracy on the date of this opinion, as
well as the date stated on all governmental certifications, of each statement as
to each factual matter contained in such governmental certifications; (k) that
all statutes, judicial and administrative decisions, and rules and regulations
of governmental agencies constituting the law for which we are assuming
responsibility are published and accurately accessible through the legal
publishers, databases and other research services on which we customarily rely;
(l) that in choosing to have the Transaction Documents governed by the laws of
the State of Illinois, the parties were acting in good faith and did not make
the choice for the purpose of avoiding or evading the laws of any jurisdiction;
(m) that there was no deceit by any person in connection with the execution,
delivery or performance of any of the Transaction Documents or any of the
transactions contemplated by such documents; (n) that each addressee of this
opinion has received all documents which it was required to receive under the
Transaction Documents; (o) the Transaction Documents will be enforced in
circumstances and in a manner which are commercially reasonable; (p) all of the
documents required to be filed or recorded will be timely and correctly filed in
or with the appropriate office, together with payment of all fees and taxes; and
(q) that each addressee of this opinion has satisfied those legal requirements
applicable to it to the extent necessary to make the Transaction Documents
enforceable against it.
Aspire
Capital Fund LLC
August
__, 2011
Page
3
As used
in the opinions expressed herein, the phrase “to our Knowledge” refers only to
the actual current knowledge of those attorneys in our firm who have given
substantive attention to the Company in connection with matters directly related
to the Transaction Documents and does not (i) include constructive notice of
matters of information; or (ii) imply that we have undertaken any independent
investigation (a) with any persons outside our firm or (b) as to the accuracy or
completeness of any factual representation or other information made or
furnished by the Company in connection with the transactions contemplated by the
Transaction Documents. Furthermore, such reference means only that we
do not know of any fact or circumstance contradicting the statement that follows
the reference, and does not imply that we know the statement to be correct or
have any basis for that statement. When an opinion is based on reliance upon a
third party's certification, we have not researched in any manner the factual
veracity of the certification and unless otherwise expressly stated, reliance
means complete reliance as we have not taken any independent investigation of
such certifications.
We have
reviewed the Agreement and the exhibits and schedules thereto, and the
Transaction Documents referred to therein. We also have examined such
certificates of public officials, corporate documents and records and other
certificates, opinions, agreements and instruments and have made such other
investigations as we have deemed necessary in connection with the opinions
hereinafter set forth.
Based on
the foregoing and upon such investigation as we have deemed necessary, we give
you our opinion as follows:
1.
The Company is a corporation existing and in good standing
under the laws of the State of Florida and, to our Knowledge, with corporate
power and authority to own, lease and operate its properties and to conduct its
business as it is now conducted and perform its obligations under the
Agreement.
2.
The Company has the requisite corporate power to execute, deliver and
perform its obligations under the Transaction Documents to which it is a
party.
3.
The execution, delivery and performance by the Company of the Transaction
Documents to which it is a party have been duly authorized by all necessary
Florida corporate action on the part of the Company. The execution
and delivery of the Transaction Documents by the Company, the performance of the
obligations of the Company thereunder and the consummation by it for the
transactions contemplated therein have been duly authorized and approved by the
Company’s Board of Directors and no further consent, approval or authorization
of the Company, its Board of Directors or its stockholders is required except
for approval of the issuance of Purchase Shares in excess of the NASDAQ Global
Market’s 19.99% limitation on issuance. The Transaction Documents to
which the Company is a party have been duly executed and delivered by the
Company and are the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except that (a) such
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors’ rights in general and (b) the remedies
of specific performance and injunctive and other forms of injunctive relief may
be subject to equitable defenses.
4.
The execution, delivery
and performance by the Company of the Transaction Documents, the consummation by
the Company of the Transactions contemplated thereby including the offering,
sale and issuance of the Commitment Shares, and the Purchase Shares in
accordance with the terms and conditions of the Common Stock Purchase Agreement,
and fulfillment and compliance with terms of the Transactions Documents, do not
violate (i) the Articles of Incorporation or the Bylaws of the Company or (ii)
result in any violation of any Florida statute, law, rule or regulation
applicable to the Company.
Aspire
Capital Fund LLC
August
__, 2011
Page
4
5.
The issuance of the
Purchase Shares and Commitment Shares pursuant to the terms and conditions of
the Transaction Documents has been duly authorized and the Commitment Shares are
validly issued, fully paid and non-assessable, to our knowledge, free of all
statutory preemptive rights. When issued and paid for in accordance
with the Agreement, the Purchase Shares shall be validly issued, fully paid and
non-assessable, to our knowledge, free of all statutory preemptive
rights.
The
opinions set forth above are subject to the following limitations,
qualifications, and exceptions:
(a) We
express no opinion with respect to any law, rule, or regulation, of the United
States of America or any state or other jurisdiction, regarding bankruptcy or
insolvency, taxation, blue sky, environmental, or antitrust or unfair
competition.
(b) The
legality, validity, binding effect and enforceability of the Transaction
Documents may be limited or otherwise affected by, and we express no opinion as
to the enforceability of any provision of the Transaction Documents to the
extent such provision may be subject to, or affected by, applicable bankruptcy,
insolvency, moratorium or state or federal laws affecting the rights and
remedies of creditors generally (including without limitation, fraudulent
transfer laws) or equitable principles, whether applied by a court of law or
equity or in arbitration, including, without limitation, the duty to act in good
faith, or the applicability of concepts of materiality, reasonableness, good
faith and fair dealing.
(c) We
express no opinion regarding the enforceability of rights and remedies set forth
in the Transaction Documents to the extent such rights or remedies may be
limited or determined by a court of competent jurisdiction or other tribunal as
unconscionable as a matter of law or contrary to public policy, or limiting the
availability of a remedy under certain circumstances where another remedy has
been elected.
(d) The
availability of the remedies of specific performance and injunctive relief, as
well as other equitable remedies, whether sought in a proceeding in equity or at
law, is subject to the discretion of the tribunal before whom the proceeding
shall have been brought and to public policy restrictions.
(e) The
enforceability of any indemnification, contribution, hold harmless or
exculpation clauses may be limited by applicable federal and state securities
laws and general principles of public policy.
(f) We
express no opinion with respect to the enforceability of provisions that purport
to prevent oral modification or waivers.
(g) All
opinions expressed herein are based on and limited to Florida law of the date
hereof and the facts presented to us. We express no opinion herein as
to any other laws, statutes, ordinances, rules or regulations. We
note that certain Transaction Documents purport to be governed by laws other
than the State of Florida. We have assumed, with your consent, that
the laws of the State of Florida are identical in all relevant respects to the
laws of such other states or jurisdictions. We have made no further
investigation of such other laws, rules or regulations for the purpose of
rendering the opinions expressed above.
(h) Nothing
contained herein shall be construed as expressing any opinion regarding local
statutes, ordinances, administrative decisions, or regarding the rules and
regulations of counties, towns, municipalities or special political subdivisions
(whether created or enabled through legislative action at the state or regional
level), or regarding judicial decisions to the extent that they deal with any of
the foregoing.
Aspire
Capital Fund LLC
August
__, 2011
Page
5
The
opinions in this letter are (i) limited to the matters stated herein and no
opinions may be implied or inferred beyond the matters expressly stated herein
and (ii) subject to applicable laws respecting limitations of actions. We have
not assumed and expressly disclaim any obligation to advise you beyond the
opinions specifically expressed herein.
This
opinion is rendered solely to you and is solely for your benefit in connection
with the transaction described in the introductory paragraph to this letter and
is not to be used, circulated, quoted, relied upon or otherwise referred to for
any other purpose, nor relied upon by any other person other than you and your
successors, assigns and participants, without our prior written
consent.
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Very
truly yours,
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/s/ Roetzel & Andress,
LPA
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ROETZEL
& ANDRESS, LPA
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