Cleanspark, Inc S-3ASR, filed Mar 15, 2021
Cleanspark, Inc. (CLSK)
SECURITIES AND EXCHANGE COMMISSION
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Nevada
(State or other jurisdiction of incorporation or organization) |
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87-0449945
(I.R.S. Employer Identification Number) |
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Woods Cross, Utah 84087
(702) 244-4405
President and CEO
CleanSpark, Inc.
1185 S. 1800 West, Suite 3
Woods Cross, Utah 84087
(702) 244-4405
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Christopher L. Tinen, Esq.
Procopio, Cory, Hargreaves & Savitch LLP 12544 High Bluff Drive, Suite 400 San Diego, CA 92130 (858) 720-6320 |
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Mark Wood, Esq.
Mark Reyes, Esq. Katten Muchin Rosenman LLP 525 W. Monroe Street Chicago, IL 60661 (312) 902-5200 |
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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Title of each class of securities to be registered(1)
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Amount to be
registered(2)(3) |
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Proposed
maximum offering price per unit(2)(3) |
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Amount to be
registered/proposed maximum offering price per unit/proposed maximum aggregate offering price(2)(3) |
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Amount of
registration fee(4) |
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Common Stock
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Preferred Stock
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Debt Securities
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Warrants
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Subscription Rights
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Units
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![[MISSING IMAGE: lg_cleanspark-4c.jpg]](/stocks/clskw/documents/a55d6f96-9e48-4649-ae77-8aa553b6eb90/asset/lg_cleanspark-4c.jpg)
Preferred Stock
Debt Securities
Warrants
Units
Subscription Rights
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1185 South 1800 West, Suite 3
Woods Cross, UT 84087
(702) 244-4405
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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SEC registration fee
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FINRA filing fee
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Nasdaq supplemental listing fee
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Printing expenses
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Legal fees and expenses
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Accounting fees and expenses
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Blue Sky, qualification fees and expenses
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Transfer agent fees and expenses
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Trustee fees and expenses
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Miscellaneous
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Total
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Exhibit No.
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Description
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| | 4.2 | | | Form of Subordinated Indenture, incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-3, filed with the Securities and Exchange Commission on September 23, 2020 and declared effected on October 2, 2020. | |
| | 4.3** | | | Form of Warrant. | |
| | 4.4** | | | Form of Warrant Agreement. | |
| | 4.5** | | | Form of Preferred Stock Certificate. | |
| | 4.6** | | | Form of Subscription Rights Certificate. | |
| | 4.7** | | | Form of Unit. | |
| | 4.8** | | | Form of Unit Agreement. | |
| | 5.1* | | | | |
| | 5.2* | | | | |
| | 23.1* | | | Consent of MaloneBailey, LLP. | |
| | 23.2* | | | | |
| | 23.3* | | | | |
| | 24.1* | | | | |
| | 25.1*** | | | Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939. | |
| | 25.2*** | | | Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939. | |
President and Chief Executive Officer
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Signature
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Title
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Date
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/s/ Zachary K. Bradford
Zachary K. Bradford
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President, Chief Executive Officer and Director
(Principal Executive Officer) |
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March 15, 2021
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/s/ Lori Love
Lori Love
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
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March 15, 2021
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/s/ S. Matthew Schultz
S. Matthew Schultz
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Executive Chairman and
Chairman of the Board of Directors |
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March 15, 2021
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/s/ Larry McNeill
Larry McNeill
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Director
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March 15, 2021
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/s/ Dr. Thomas L. Wood
Dr. Thomas L. Wood
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Director
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March 15, 2021
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/s/ Roger P. Beynon
Roger P. Beynon
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Director
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March 15, 2021
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Exhibit 5.1
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PROCOPIO 12544
High Bluff Drive T.
858.720.6300 |
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DEL MAR HEIGHTS LAS VEGAS orange county PHOENIX SAN DIEGO SILICON VALLEY |
March 15, 2021
CleanSpark, Inc.
1185 S. 1800 West, Suite 3
Woods Cross, Utah 84087
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to CleanSpark, Inc., a Nevada corporation (the “Company”), in connection with its filing on the date hereof with the Securities and Exchange Commission (the “Commission”) of its Registration Statement on Form S-3 (the “Registration Statement”) filed pursuant to the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement, including the prospectus which forms a part of the Registration Statement (the “Base Prospectus”), and as will be supplemented from time to time by one or more prospectus supplements (each, a “Prospectus Supplement,” and together with the Base Prospectus, a “Prospectus”), provides for the registration by the Company of the following securities:
| (i) | shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”); |
| (ii) | shares of one or more series of the Company’s preferred stock, par value $0.001 per share (the “Preferred Stock”); |
| (iii) | debt securities (the “Debt Securities”) which may be issued pursuant to an indenture to be entered into between the Company and a trustee, as amended from time to time (the “Indenture”); |
| (iv) | warrants to purchase Common Stock, Preferred Stock, Debt Securities, or any combination thereof (individually or collectively, the “Warrants”); |
| (v) | subscription rights to purchase Common Stock, Preferred Stock, or Debt Securities (individually or collectively, the “Subscription Rights”); and/or |
CleanSpark, Inc.
March 15, 2021
Page 2
| (vi) | units of the Company consisting of one or more of the securities described above in any combination (the “Units”). |
We collectively refer to the Common Stock, the Preferred Stock, the Debt Securities, the Warrants, the Subscription Rights, and the Units in the Registration Statement as the “Securities” or individually as a “Security.”
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with respect to the issue of the Securities.
For purposes of rendering this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of:
| 1. | the Registration Statement; |
| 2. | the Base Prospectus contained in the Registration Statement; |
| 3. | the Articles of Incorporation and amendments thereto, as filed with the Secretary of State of the State of Nevada, as presently in effect (the “Company’s Articles of Incorporation”); |
| 4. | the Bylaws of the Company, as presently in effect (the “Company’s Bylaws” and, together with the Company’s Articles of Incorporation, the “Organizational Documents”); and |
| 5. | Resolutions adopted by the Board of Directors of the Company, authorizing and approving the Registration Statement, the registration of the Securities for issuance and sale by the Company, and matters related thereto. |
We have also examined such other certificates of public officials, such other certificates of officers of the Company and such other records, agreements, documents and instruments as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In such examination, we have assumed: (i) the genuineness of all signatures, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents of all documents submitted to us as certified, conformed or other copies and the authenticity of the originals of such documents and (v) that all records and other information made available to us by the Company on which we have relied are complete in all material respects. As to all questions of fact material to these opinions, we have relied solely upon the above-referenced certificates or comparable documents and upon the statements contained in the Registration Statement, have not performed or had performed any independent research of public records and have assumed that certificates of or other comparable documents from public officials dated prior to the date hereof remain accurate as of the date hereof.
In connection with each of the opinions expressed below, we have assumed that, at or prior to the time of delivery of any Security, (i) the Registration Statement has been declared effective and such effectiveness has not been terminated or rescinded, (ii) a Prospectus Supplement, to the extent required by applicable law and relevant rules and regulations of the Commission, will be timely filed with the Commission describing each class or series of Securities offered thereby and any other matters required thereby and will comply with applicable law, (iii) the definitive terms of the issuance and sale of each class or series of Securities will have been duly authorized by all necessary corporate action of the Company, including, without limitation, authorizing resolutions adopted by the Company’s Board of Directors (or an authorized committee thereof) and, if necessary, the Company’s stockholders, in conformity with the applicable Organizational Documents, as in effect at such time, and applicable law (including (A) the due reservation of any shares of Common Stock or Preferred Stock for issuance upon exercise, conversion or exchange of any Securities for Common Stock or Preferred Stock, as applicable (a “Convertible Security”), and (B) the execution (in the case of certificated Securities), delivery and performance of the Securities and any related documentation referred to in paragraphs 1 through 3 below shall have been duly completed and shall remain in full force and effect), (iv) upon issuance of any Common Stock or Preferred Stock, including upon exercise, conversion or exchange of any Convertible Security, the total number of shares of Common Stock or Preferred Stock issued and outstanding will not exceed the total number of shares of Common Stock or Preferred Stock, as applicable, that the Company is then authorized to issue under the Company’s Articles of Incorporation; (v) all Securities will be issued and sold (including receipt of payment therefor) in the manner contemplated by the Registration Statement and any applicable Prospectus Supplement; and (vi) there has not occurred any change in law or further action by the Company’s Board of Directors, in any case affecting the validity or enforceability of such Security. We have also assumed that none of the terms of any Securities to be established after the date hereof, nor the issuance and delivery of such Securities, nor the compliance by the Company with the terms of such Securities will violate any applicable law or public policy or result in a violation of any provision of any instrument or agreement then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company.
CleanSpark, Inc.
March 15, 2021
Page 3
Based on the foregoing and in reliance thereon, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:
| 1. | With respect to shares of Common Stock registered pursuant to the Registration Statement, when the issuance of such shares has been duly authorized by all necessary corporate action of the Company and certificates representing such shares of Common Stock have been duly executed, issued and delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company’s Board of Directors, for the consideration provided for therein (which consideration, on a per share basis, is not less than the par value of the Common Stock), or (ii) upon exercise, conversion or exchange of any Convertible Security (which was validly issued and is fully paid and non-assessable (in the case of an equity Security) or is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms) in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing for such exercise, conversion or exchange as approved by the Company’s Board of Directors, and for any additional consideration specified therein (which consideration (including any consideration paid for such Convertible Security), on a per share basis, is not less than the par value of the Common Stock), then such shares of Common Stock will be validly issued, fully paid and non-assessable. |
| 2. | With respect to any particular series of shares of Preferred Stock registered pursuant to the Registration Statement, when the issuance and terms of the shares of Preferred Stock, the terms of the offering thereof and related matters, including the adoption of a certificate of designation relating to such Preferred Stock conforming to the Company’s Articles of Incorporation and Company’s Bylaws and Title 7, Chapter 78 of the Nevada Revised Statutes of the State of Nevada (a “Certificate”) and the filing of the Certificate with the Secretary of State of the State of Nevada, has been duly authorized by appropriate corporate action of the Company’s Board of Directors and, if required, the stockholders of the Company, and certificates representing the shares of Preferred Stock have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company’s Board of Directors, for the consideration provided for therein (which consideration, on a per share basis, is not less than the par value of the Preferred Stock), or (ii) upon exercise, conversion or exchange of any Convertible Security of the Company (which was validly issued and is fully paid and non-assessable (in the case of an equity Security) or is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms), in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing for such exercise, conversion or exchange as approved by the Company’s Board of Directors, and for any additional consideration specified therein (which consideration (including any consideration paid for such Convertible Security), on a per share basis, is not less than the par value of the Preferred Stock), then such shares of Preferred Stock will be validly issued, fully paid and non-assessable. |
CleanSpark, Inc.
March 15, 2021
Page 4
| 3. | The Company is duly organized and validly existing under the laws of Nevada and, with respect to the Debt Securities, Warrants, Subscription Rights and Units, the Company has the corporate power and authority to enter into and perform its obligations under and, in respect of, the Debt Securities, the Warrants, the Subscription Rights and the Units, and under and in respect of all agreements and instruments under which any such Securities shall be offered or issued. |
Our opinions are subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought; (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iv) we express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of any debt securities, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity, election or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations, (k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, (n) any provision to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides, and (o) the severability, if invalid, of provisions to the foregoing effect.
The opinions expressed herein are limited to (i) Title 7, Chapter 78 of the Nevada Revised Statutes and (ii) those Federal securities laws, rules, and regulations of the United States of America, in each case which, in our experience, without having made any special investigation as to the applicability of any specific law, rule, or regulation, are normally applicable to transactions of the type contemplated by the Registration Statement (collectively, the “Applicable Laws”). No opinion is expressed as to the effect on the matters covered by this letter of the laws, rules or regulations of the United States of America, any state thereof or any other jurisdiction, other than the Applicable Laws.
Various issues concerning the laws of the State of New York are addressed in the opinion of Katten Muchin Rosenman LLP, separately provided to you. We express no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
The opinions expressed herein are rendered as of the date hereof and are based on existing law, which is subject to change. Where our opinions expressed herein refer to events to occur at a future date, we have assumed that there will have been no changes in the relevant law or facts between the date hereof and such future date. We do not undertake to advise you of any changes in the opinions expressed herein from matters that may hereafter arise or be brought to our attention or to revise or supplement such opinions should the present laws of any jurisdiction be changed by legislative action, judicial decision or otherwise.
Our opinions expressed herein are limited to the matters expressly stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.
CleanSpark, Inc.
March 15, 2021
Page 5
This opinion is to be used only in connection with the offer and sale of the Securities while the Registration Statement is in effect.
This opinion letter has been prepared and may be used by the Company as an exhibit in connection with the filing by the Company of Form S-3 with the Commission. We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the above-described Form S-3 and to the reference made to this firm in the Registration Statement under the heading “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, 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.
| Very truly yours, | |
| /s/ Procopio, Cory, Hargreaves & Savitch LLP | |
| Procopio, Cory, Hargreaves & Savitch LLP |
Exhibit 5.2
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| 525 W. Monroe Street | |
| Chicago, IL 60661-3693 | |
| 312.902.5200 tel | |
| 312.902.1061 fax | |
| www.kattenlaw.com |
March 15, 2021
CleanSpark, Inc.
1185 S. 1800 West, Suite 3
Woods Cross, Utah 84087
| Re: | CleanSpark, Inc. | |
| Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to CleanSpark, Inc., a Nevada corporation (the “Company”), in connection with the preparation of a Registration Statement (File No. 333- ) on Form S-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”), with respect to the registration and public offering by the Company, from time to time, pursuant to Rule 415 under the Act, of an indeterminate number and amount of securities, consisting of the following:
| (i) | common stock, $0.001 par value, of the Company (“Common Stock”); |
| (ii) | preferred stock, $0.001 par value, of the Company, of one or more classes or series (“Preferred Stock”); |
| (iii) | senior debt securities of the Company (the “Senior Debt Securities”) and subordinated debt securities of the Company (the “Subordinated Debt Securities” and, collectively with the Senior Debt Securities, the “Debt Securities”); |
| (iv) | warrants to purchase Common Stock, Preferred Stock and/or Debt Securities (“Warrants”); |
| (v) | subscription rights to purchase shares of Common Stock, Preferred Stock and/or Debt Securities (“Subscription Rights”); and |
| (vi) | units comprised of one or more of the securities described above in any combination (“Units”). |
The Common Stock, Preferred Stock, Debt Securities, Warrants, Subscription Rights and Units are referred to herein as the “Securities.”
The Senior Debt Securities are to be issued pursuant to a Senior Debt Indenture (the “Senior Indenture”), and the Subordinated Debt Securities are to be issued pursuant to a Subordinated Debt Indenture (the “Subordinated Indenture”), the forms of which have been filed as exhibits to the Registration Statement (collectively, the “Indentures”) and are to be entered into, in each case, between the Company and a trustee (the “Trustee”).
KATTEN MUCHIN ROSENMAN LLP
CENTURY CITY CHARLOTTE CHICAGO DALLAS HOUSTON LOS ANGELES
NEW YORK ORANGE COUNTY SHANGHAI WASHINGTON, DC
A limited liability partnership including professional corporations
LONDON: KATTEN MUCHIN ROSENMAN UK LLP
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act in respect of the Debt Securities, Warrants, Subscription Rights and Units.
In connection with this opinion, we have relied as to matters of fact, without investigation, upon certificates of public officials and officers of the Company. We have also relied, to the extent we have determined such reliance to be appropriate, without independent investigation and with the permission of Procopio, Cory, Hargreaves & Savitch LLP, on the opinion of Procopio, Cory, Hargreaves & Savitch LLP, dated of even date herewith, as Nevada counsel to the Company, which is filed as Exhibit 5.1 to the Registration Statement. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such instruments, documents and records as we have deemed relevant and necessary to examine for the purpose of this opinion, including (i) the Registration Statement, (ii) the form of Senior Indenture filed as an exhibit to the Registration Statement, and (iii) the form of Subordinated Indenture filed as an exhibit to the Registration Statement.
In connection with this opinion, we have assumed at all applicable times the legal capacity of all natural persons, the accuracy and completeness of all documents and records that we have reviewed, the genuineness of all signatures, the due authority of the parties signing such documents, the authenticity of the documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed or reproduced copies. We have assumed that the Company is, and at all times will be, duly organized and in good standing under the laws of Nevada and has or will have the corporate power and authority to enter into and perform its obligations under and, in respect of, the Debt Securities, the Warrants, the Subscription Rights and the Units, and under and in respect of all agreements and instruments under which any such Securities shall be offered or issued, and with respect to all documents executed or to be executed by parties, we have assumed that such parties had or will have the power and authority, corporate or other, to enter into and perform all obligations thereunder and have also assumed the valid existence of such parties, the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents.
In addition, we have assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective under the Act and such effectiveness shall not have been terminated or rescinded, (ii) a prospectus supplement and any required pricing supplement will have been timely filed with the Commission describing the Securities offered thereby, (iii) all Debt Securities, Warrants, Subscription Rights and Units will be issued and sold in compliance with applicable Federal and state securities laws and in the manner stated in the Registration Statement, the applicable prospectus supplement and any applicable pricing supplement, (iv) a definitive purchase, underwriting or similar agreement with respect to any Debt Securities, Warrants, Subscription Rights or Units offered will be duly authorized and validly executed and delivered by the Company and the other parties thereto, (v) any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise, (vi) there will be no terms or provisions contained in any agreement pursuant to which any Securities are to be issued that would affect the opinions rendered herein, (vii) any agreement pursuant to which any Securities shall be offered or issued shall be governed by New York law, (viii) the Company’s entry into the Senior Indenture in the form of Exhibit 4.1 to the Registration Statement will be duly authorized and approved, and the Senior Indenture will be entered into by the Company and the Trustee in the form of Exhibit 4.1 to the Registration Statement, (ix) the Company’s entry into the Subordinated Indenture in the form of Exhibit 4.2 to the Registration Statement will be duly authorized and approved, and the Subordinated Indenture will be entered into by the Company and the Trustee in the form of Exhibit 4.2 to the Registration Statement, and (x) all actions are taken by the Company (A) 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 and (B) so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
2
Our opinions set forth below are subject to (i) the effects of bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting the rights and remedies of creditors generally (including, without limitation, the effect of statutory and other laws regarding fraudulent conveyances, fraudulent transfers and preferential transfers), (ii) the exercise of judicial discretion and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether the enforceability of the Debt Securities, Warrants, Subscription Rights or Units, to the extent applicable, are considered in a proceeding at law or in equity), (iii) the possible unenforceability of indemnity, exculpation and contribution provisions, (iv) the effect and possible unenforceability of choice of law provisions, (v) the possible unenforceability of provisions purporting to waive rights or defenses where such waiver is against public policy, (vi) the possible unenforceability of provisions purporting to exonerate any party for negligence or malfeasance, or to negate any remedy of any party for fraud, (vii) the possible unenforceability of forum selection clauses, (viii) the possible unenforceability of provisions permitting modification of an agreement only in writing, and (ix) the possible unenforceability of provisions purporting to allow action without regard to mitigation of damages.
On the basis of the foregoing and the other matters set forth herein, we hereby are of the opinion that:
(1) Debt Securities. With respect to any series of Debt Securities to be issued under either the Senior Indenture or Subordinated Indenture, when (a) the Trustee is qualified to act as Trustee under the Senior Indenture or Subordinated Indenture, as applicable, (b) the Trustee has duly executed and delivered the Senior Indenture or Subordinated Indenture, as applicable, (c) the Senior Indenture or Subordinated Indenture, as applicable, has been duly authorized and validly executed and delivered by the Company to the Trustee, (d) the Senior Indenture or Subordinated Indenture, as applicable, has been duly qualified under the Trust Indenture Act of 1939, as amended, (e) the Board of Directors of the Company or a duly constituted and acting committee thereof (such Board of Directors or committee being hereinafter referred to as the “Board”) has taken all necessary corporate action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related matters, and (f) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with (i) the provisions of the Senior Indenture or Subordinated Indenture, as applicable, and (ii) the applicable definitive purchase, underwriting or similar agreement approved by the Board and duly executed and delivered by the Company, upon payment of the consideration therefor as provided therein, such Debt Securities will constitute valid and binding obligations of the Company.
(2) Warrants. With respect to any Warrants, when (a) the Board has taken all necessary corporate action to approve the issuance and terms of such Warrants, the terms, execution and delivery of the warrant agreement relating to the Warrants (the “Warrant Agreement”), the terms of the offering thereof and related matters, (b) the Warrant Agreement has been duly authorized and validly executed and delivered by all of the parties thereto, and (c) such Warrants have been duly executed, attested, issued and delivered by duly authorized officers of the Company in accordance with (i) the provisions of the applicable Warrant Agreement and (ii) the applicable definitive purchase, underwriting or similar agreement approved by the Board and duly executed and delivered by the Company, or upon the conversion, exercise or exchange of other Securities in accordance with the terms of such Securities or the instrument governing such Securities providing for such conversion, exercise or exchange as approved by the Board, upon payment of the consideration therefor as provided therein, such Warrants and the related Warrant Agreement will constitute valid and binding obligations of the Company.
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(3) Subscription Rights. With respect to any Subscription Rights, when (a) the Board has taken all necessary corporate action to approve the issuance and terms of such Subscription Rights, the terms, execution and delivery of the subscription agreement relating to the Subscription Rights (the “Subscription Agreement”), the terms of the offering thereof and related matters, (b) the Subscription Agreement has been duly authorized and validly executed and delivered by all of the parties thereto, and (c) such Subscription Rights have been duly executed, attested, issued and delivered by duly authorized officers of the Company in accordance with (i) the provisions of the applicable Subscription Agreement and (ii) the applicable definitive purchase, underwriting or similar agreement approved by the Board and duly executed and delivered by the Company, or upon the conversion, exercise or exchange of other Securities in accordance with the terms of such Securities or the instrument governing such Securities providing for such conversion, exercise or exchange as approved by the Board, upon payment of the consideration therefor as provided therein, such Subscription Rights and the related Subscription Agreement will constitute valid and binding obligations of the Company.
(4) Units. With respect to any Units, when (a) the Board has taken all necessary corporate action to approve the issuance and terms of such Units, the terms, execution and delivery of the unit agreement relating to the Units (the “Unit Agreement”), the terms of the offering thereof and related matters, (b) the Unit Agreement has been duly authorized and validly executed and delivered by all of the parties thereto, (c) such Units have been duly executed, attested, issued and delivered by duly authorized officers of the Company in accordance with (i) the provisions of the applicable Unit Agreement and (ii) the applicable definitive purchase, underwriting or similar agreement approved by the Board and duly executed and delivered by the Company, or upon the conversion, exercise or exchange of other Securities in accordance with the terms of such Securities or the instrument governing such Securities providing for such conversion, exercise or exchange as approved by the Board, and (d) the Securities to be issued as part of such Units have been duly and validly authorized and reserved for issuance, upon payment of the consideration therefor as provided therein, such Units and the related Unit Agreement will constitute valid and binding obligations of the Company.
Our opinions expressed above are limited to all of the limitations and qualifications contained herein. Our opinions expressed above are limited to the laws of the State of New York, and we do not express any opinion herein concerning any other law. In addition, we express no opinion herein concerning any statutes, ordinances, administrative decisions, rules or regulations of any county, town, municipality or special political subdivision (whether created or enabled through legislative action at the federal, state or regional level). This opinion is given as of the date hereof and as of the effective date of the Registration Statement and we assume no obligation to advise you of changes that may thereafter occur or be brought to our attention.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.2 to the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are experts within the meaning of Section 11 of the Act or included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| Very truly yours, | |
| /s/ KATTEN MUCHIN ROSENMAN LLP | |
| KATTEN MUCHIN ROSENMAN LLP |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated December 16, 2020 with respect to the audited consolidated financial statements of CleanSpark, Inc. for the year ended September 30, 2020.
We also consent to the references to us under the heading “Experts” in such Registration Statement.
/s/ MaloneBailey, LLP
www.malonebailey.com
Houston, Texas
March 15, 2021