Attached files
| file | filename |
|---|---|
| 8-K - EnSync, Inc. | v195921_8-k.htm |
Exhibit
5
 |
780 NORTH WATER
STREET
MILWAUKEE, WI
53202-3590
TEL
414-273-3500
FAX
414-273-5198
www.gklaw.com
|
September
2, 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 1,653,825 shares (the “Shares”) of the Company’s common stock, $0.01 par
value per share (“Common Stock”). 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 September 2, 2010 (the
“Prospectus Supplement”) relating to the Shares. The Shares will be
issued and sold pursuant to the terms of an Amended and Restated Securities
Purchase Agreement dated as of August 30, 2010 (the “Purchase Agreement”)
between Socius CG II, Ltd. and the Company and a warrant which is subject to the
terms of a Warrant to Purchase Common Stock (the “Common Stock Purchase
Warrant”).
In our
capacity as special counsel to the Company in connection with the registration
of the Shares, we have examined: (i) the Registration Statement, the Base
Prospectus and the 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 warranties and statements of fact made in the
documents so reviewed, and we have not independently established the facts so
relied on.
OFFICES IN
MILWAUKEE, MADISON, WAUKESHA, GREEN BAY & APPLETON, WI; AND
WASHINGTON, DC
GODFREY & KAHN IS
A MEMBER OF TERRALEX®, A
WORLDWIDE NETWORK OF INDEPENDENT LAW
FIRMS.
ZBB
Energy Corporation
September
2, 2010
Page
2
Based on
the foregoing and subject to the limitations, qualifications and assumptions set
forth herein, we are of the opinion that the Shares have been duly authorized,
and when issued and sold in accordance with the terms of the Purchase Agreement
and 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 and the State of
Wisconsin, including the statutory provisions, all applicable provisions of the
Constitution of the State of Wisconsin and reported judicial decisions
interpreting these laws, 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 such date or of any facts that might change the opinion
expressed herein that we may become aware of after such date.
We
consent to the filing of this opinion as an exhibit to 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. | |||