Exhibit 2.l
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Darren K. DeStefano |
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T: (703) 456-8034 |
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ddestefano@cooley.com |
October 13, 2006
Gladstone Investment Corporation
1521 Westbranch Drive, Suite 200
McLean, VA 22102
Ladies and Gentlemen:
We have acted as counsel to Gladstone Investment Corporation, a Delaware corporation (the
“Company”), in connection with the Registration Statement on Form N-2 (the “Registration
Statement”) to be filed by the Company under the Securities Act of 1933, as amended (the
“Securities Act”). The Company has provided us with a prospectus (the “Prospectus”), which forms
part of the Registration Statement. The Prospectus may be amended from time to time in connection
with one or more post-effective amendments to the Registration Statement, and the Prospectus
provides that it will be supplemented in the future by one or more prospectus supplements (each, a
“Prospectus Supplement”). The Registration Statement, as amended from time to time, including the
Prospectus as supplemented from time to time by one or more Prospectus Supplements, will provide
for the registration by the Company of:
• shares of common stock, $0.001 par value per share, of the Company (the “Common Stock”);
• shares of preferred stock, $0.001 par value per share, of the Company (the “Preferred Stock”);
• senior debt securities, in one or more series (the “Senior Debt Securities”), which may be issued
pursuant to an indenture to be dated on or about the date of the first issuance of Senior Debt
Securities thereunder, by and between a trustee to be selected by the Company (the “Trustee”) and
the Company, in the form filed as Exhibit 2.d.2 to the Registration Statement, as such indenture
may be supplemented from time to time (the “Senior Indenture”); and
• subordinated debt securities, in one or more series (the “Subordinated Debt Securities” and,
together with the Senior Debt Securities, the “Debt Securities”), which may be issued pursuant to
an indenture to be dated on or about the date of the first issuance of Subordinated Debt Securities
thereunder, by and between the Trustee and the Company, in the form filed as Exhibit 2.d.3 to the
Registration Statement, as such indenture may be supplemented from time to time (the “Subordinated
Indenture”).
The Common Stock, the Preferred Stock and the Debt Securities are collectively referred to herein
as the “Securities.” The Securities are being registered for offering and sale from time to time
pursuant to Rule 415 under the Securities Act. The aggregate public offering price of the
Securities being registered will be $100,000,000.
In connection with this opinion, we have examined and relied upon the originals, or copies
certified to our satisfaction, of such records, documents, certificates, opinions, memoranda and
other instruments as in our judgment are necessary or appropriate to enable us to render the
opinion expressed below. As to certain factual matters, we have relied upon certificates of the
officers of the Company and have not independently sought to verify such matters.
In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on
original documents; the authenticity of all documents submitted to us as originals; the conformity
to originals of all documents submitted to us as copies; the accuracy, completeness and
authenticity of certificates of public officials; and the due authorization, execution and delivery
of all documents where authorization, execution and delivery are prerequisites to the effectiveness
of such documents. With respect to our opinion as to the Common Stock, we have assumed that, at the
time of issuance and sale, a sufficient number of shares of Common Stock are authorized and
available for issuance and that the consideration for the issuance and sale of the Common Stock (or
Preferred Stock or Debt Securities convertible into Common Stock) is in an amount that is not less
than the par value of the Common Stock. With respect to our opinion as to the Preferred Stock, we
have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred
Stock are authorized, designated and available for issuance and that the consideration for the
issuance and sale of the Preferred Stock (or Debt
Gladstone Investment Corporation
October 13, 2006
Page 2
Securities convertible into Preferred Stock) is in an amount that is not less than the par value of
the Preferred Stock. We have also assumed that (i) with respect to Securities being issued upon
conversion of any convertible Preferred Stock, the applicable convertible Preferred Stock will be
duly authorized, validly issued, fully paid and nonassessable; and (ii) with respect to any
Securities being issued upon conversion of any convertible Debt Securities, the applicable
convertible Debt Securities will be valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws affecting creditors’ rights, and subject to general equity principles and to
limitations on availability of equitable relief, including specific performance.
Our opinion herein is expressed solely with respect to the federal laws of the United States, the
Delaware General Corporation Law and, as to the Debt Securities constituting valid and legally
binding obligations of the Company, solely with respect to the laws of the State of New York. Our
opinion is based on these laws as in effect on the date hereof. We express no opinion as to whether
the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any
opinion as to compliance with any federal or state law, rule or regulation relating to securities,
or to the sale or issuance thereof.
On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein
stated, we are of the opinion that:
1. With respect to the Common Stock offered under the Registration Statement, provided that (i) the
Registration Statement and any required post-effective amendment thereto have all become effective
under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by
applicable laws have been delivered and filed as required by such laws; (ii) the issuance of the
Common Stock has been duly authorized by all necessary corporate action on the part of the Company;
(iii) the issuance and sale of the Common Stock do not violate any applicable law, are in
conformity with the Company’s then operative Certificate of Incorporation (the “Certificate of
Incorporation”) and Bylaws (the “Bylaws”), do not result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any applicable requirement or
restriction imposed by any court or governmental body having jurisdiction over the Company; and
(iv) the certificates for the Common Stock have been duly executed by the Company, countersigned by
the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor,
then the Common Stock, when issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and in accordance with any applicable duly
authorized, executed and delivered purchase, underwriting or similar agreement, or upon conversion
of any convertible Preferred Stock or convertible Debt Securities in accordance with their terms
will be duly authorized, validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock offered under the Registration Statement, provided that (i)
the Registration Statement and any required post-effective amendment thereto have all become
effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s)
required by applicable laws have been delivered and filed as required by such laws; (ii) the terms
and issuance of the Preferred Stock have been duly authorized by all necessary corporate action on
the part of the Company; (iii) the terms of the shares of Preferred Stock and their issuance and
sale do not violate any applicable law, are in conformity with the Certificate of Incorporation and
Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the
Company and comply with any applicable requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and (iv) the certificates for the Preferred
Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly
delivered to the purchasers thereof against payment therefor, then the Preferred Stock, when issued
and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and in accordance with any applicable duly authorized, executed and delivered
purchase, underwriting or similar agreement, or upon conversion of any convertible Debt Securities
in accordance with their terms will be duly authorized, validly issued, fully paid and
nonassessable.
3. With respect to any series of the Debt Securities issued under the Senior Indenture or the
Subordinated Indenture, as applicable, and offered under the Registration Statement, provided that
(i) the Registration Statement and any required post-effective amendment thereto have all become
effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s)
required by applicable laws have been delivered and filed as required by such laws; (ii) the
Senior Indenture or the Subordinated Indenture, as applicable, has been duly authorized by the
Company and the Trustee by all necessary corporate action; (iii) the Senior Indenture or the
Subordinated Indenture, as applicable, in substantially
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October 13, 2006
Page 3
the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by
the Company and the Trustee; (iv) the issuance and terms of the Debt Securities have been duly
authorized by the Company by all necessary corporate action; (v) the terms of the Debt Securities
and of their issuance and sale have been duly established in conformity with the Senior Indenture
or the Subordinated Indenture, as applicable, so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument binding upon the Company, so as to be in
conformity with the Certificate of Incorporation and Bylaws, and so as to comply with any
requirement or restriction imposed by any court or governmental body having jurisdiction over the
Company; and (vi) the Debt Securities have been duly executed and delivered by the Company and
authenticated by the Trustee pursuant to the Senior Indenture or the Subordinated Indenture, as
applicable, and delivered against payment therefor, then the Debt Securities, when issued and sold
in accordance with the Senior Indenture or the Subordinated Indenture, as applicable, and a duly
authorized, executed and delivered purchase, underwriting or similar agreement will be valid and
legally binding obligations of the Company, enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and
subject to general equity principles and to limitations on availability of equitable relief,
including specific performance.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to
the reference to our firm under the caption “Legal Matters” in the Prospectus which forms part of
the Registration Statement. This opinion is expressed as of the date hereof, and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any
subsequent changes in applicable law.
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| Very truly yours, |
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| Cooley Godward Kronish LLP |
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By: |
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/s/ Darren K. DeStefano |
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Darren K. DeStefano |
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