June 13, 2011
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 5,000,000 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Shares”). 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. 333-171957) (the “Registration Statement”), including a base prospectus dated March 21, 2011 (the “Base Prospectus”) and a prospectus supplement dated June 13, 2011 (the “Prospectus Supplement”) relating to the Shares. The Shares will be sold pursuant to the terms of a securities purchase agreement (the “Purchase Agreement”) between the investors and the Company.
In our capacity as special counsel to the Company in connection with the registration of the Shares, 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) 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.
ZBB Energy Corporation
June 13, 2011
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, will be validly issued, fully paid and non-assessable.
The foregoing opinion is 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 hereof, 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.
We consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K dated June 13, 2011, which is incorporated by reference in the Registration Statement and to the reference to us under the heading “Legal Matters” in the Prospectus and Prospectus Supplement. In giving this consent, we do not admit that we are experts, or within the category of persons whose consent is required under Section 7 of said Act.
| Very truly yours, |
| /s/ Godfrey & Kahn, S.C. |
| GODFREY & KAHN, S.C. |