| MORTON R. BRANZBURG LEONARD M. KLEHR RONA J. ROSEN CAROL ANN SLOCUM MICHAEL C. FORMAN MICHAEL K. CORAN JOANNE B. WILLS KEITH W. KAPLAN DOUGLAS F. SCHLEICHER RICHARD M. BECK DAVID S. EAGLE* LAURANCE E. BACCINI LAWRENCE D. ROVIN STEVEN A. KAYE STEVEN K. KORTANEK JEFFREY O. GREENFIELD JONATHAN D. BENNETT SHAHAN G. TEBERIAN JOHN F. LETCHFORD¶ DANIEL P. O’BRIEN DONALD P. FOSTER | WILLIAM A. HARVEY LAWRENCE J. AREM RICHARD S. ROISMAN ARNOLD E. COHEN JEFFREY KURTZMAN FRANCIS M. CORRELL, JR. CARL S. PRIMAVERA PAUL G. NOFER BARRY J. SIEGEL DENISE M. DAY BRADLEY A. KROUSE STEPHAN L. CUTLER DAVID ZALESNE CHARLES A. ERCOLE WILLIAM W. MATTHEWS III JEROLD J. NOVICK RONALD J. PATTERSON GLENN A. WEINER DANIEL R. BLICKMAN IRA A. ROSENAU | December 18, 2003 | DAVID L. ZIVE MATTHEW J. BORGER MARY B. HALFPENNY MICHAEL A. IACONELLI HEATHER I. LEVINE PINA S. WERTZBERGER JON M. KATONA• SHERMAN C. TOPPIN JULIE M. HOLLAND MICHAEL P. RITTINGER ANTHONY P. TABASSO BRETT D. FELDMAN DAVID S. McLAUGHLIN RANDI L. RUBIN JOSEPH L. VELASCO MATTHEW H. WERTHMAN DANEEN E. DOWNEY PAULA J. ZIMMERMAN ADAM E. LAVER MAGGIE S. SOBOLESKI JOSEPH P. BRADICA STEVE CUSANO KELLY LENAHAN | STEPHANIE A. FOX RICHARD C. DeMARCO A. GRANT PHELAN DIMITRI L. KARAPELOU MARC H. STOFMAN ROBERT J. DOWNS, JR. JENNIFER L. SCOLIARD† CRAIG F. ZAPPETTI JEREL A. HOPKINS LEE R. SUSSMAN ROBERT L. BRUCE MELISSA MacLEOD JASON C. MENEGAKIS LISA A. LORI NICOLE M. NIGRELLI BRAD P. BENDER BRYAN D. WEISS ROBERT A. BROWN AMANDA J. MASUCCI RONALD L. WOODMAN WILLIAM J. CLEMENTS DEBORA A. GONZALEZ |
* MEMBER OF NEW YORK & DELAWARE BAR ONLY | OF COUNSEL DONALD M. HARRISON C. HOCHSTADTER DICKER ALAN CASNOFF PETER J. NORMAN MARY ELLEN O’LAUGHLIN ANDREW O. SCHIFF DENISE SEASTONE KRAFT | |||
Encore Clean Energy, Inc.
Suite 610 375 Water Street
Vancouver, British Columbia
Canada V6B 5C6
RE: Encore Clean Energy, Inc. (the “Company”)
Ladies and Gentlemen:
We have acted as special legal counsel in the State of Delaware to the Company in connection with a registration statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended. The Registration Statement relates to the registration of up to 2,000,000 shares of the Company's common stock (the “Shares”) reserved for issuance with respect to the exercise of stock options and other eligible stock awards that may be granted (together, the “Stock Awards”) in accordance with the Company’s 2003 Stock Incentive Plan (the “Plan”). Our engagement regarding the Registration Statement has been limited to the delivery of our opinion set forth below regarding the legality of the Shares that are the subject of the Registration Statement.
In connection with this opinion, we have examined:
| (i) | the Certificate of Incorporation of the Company as in effect as of the date hereof; | |
| (ii) | the Bylaws of the Company; | |
| (iii) | resolutions adopted by the Board of Directors of the Company on December 5, 2003 with respect to the Plan; |
| (iv) | the Plan and the form of grant instrument attached thereto; | |
| (v) | a written confirmation dated December 8, 2003 from the Company's transfer agent as to the number of shares of the Company's capital stock that were issued and outstanding as of December 8, 2003; and | |
| (vi) | an Officer’s Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the “Officer’s Certificate”), including, but not limited to, the Company's statement of the aggregate number of options, warrants and other rights to purchase capital stock of the Company that are issued and outstanding. |
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. We have also assumed that the certificates representing the Shares have been, or will be when issued, properly signed by authorized officers of the Company or their agents.
As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Officer’s Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.
Members of our firm are admitted to the bar in the State of Delaware and we express no opinion as to the laws of any other jurisdiction other than the laws of the United States.
Based upon the foregoing, it is our opinion that the 2,000,000 Shares that may be issued and sold by the Company upon the exercise of stock options granted or to be granted under the Plan, when issued, sold and delivered in accordance with the Plan and the form of grant instrument attached thereto and in the manner and for the consideration stated in the Registration Statement, will be legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, constituting a part thereof and any amendments thereto. This opinion is intended solely for use in connection with issuance and sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.
Very truly yours,
/s/ KLEHR, HARRISON
HARVEY BRANZBURG & ELLERS LLP
