• | our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on April 3, 2023 (pursuant to Rule 12b-25 extension); |
• | our Definitive Information Statement on Schedule 14C, filed with the SEC on January 30, 2023; |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 12, 2023; |
• | our Current Reports on Form 8-K filed with the SEC (except for items 2.02 and 7.01) on January 3, 2023, January 13, 2023, February 7, 2023, February 24, 2023, March 13, 2023, March 21, 2023, March 22, 2023, April 3, 2023, April 5, 2023, April 24, 2023, May 5, 2023, and May 19, 2023; and |
• | the description of our capital stock contained in our Registration Statement on Form 8-A, dated October 19, 2021 and any amendment or report filed with the SEC for the purposes of updating such description, including Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on April 3, 2023. |
• | We are not required to engage an auditor to report on our internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002; |
• | We are not required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (i.e., an auditor discussion and analysis); |
• | We are not required to submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay,” “say-on-frequency” and “say-on-golden parachutes”; and |
• | We are not required to disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation to median employee compensation. |
• | the underlying volatility in pricing of, and demand for, energy and/or Bitcoin; |
• | price and volume fluctuations in the stock markets generally which create highly variable and unpredictable pricing of equity securities; |
• | actual or anticipated variations in our annual or quarterly results of operations, including our earnings estimates and whether we meet market expectations with regard to our earnings; |
• | significant volatility in the market price and trading volume of securities of companies in the sectors in which our business operates, which may not be related to the operating performance of these companies and which may not reflect the performance of our businesses; |
• | loss of a major funding source; |
• | operating performance of companies comparable to us; |
• | changes in regulations or tax law, including those affecting the holding, transferring or mining of cryptocurrency; |
• | share transactions by principal stockholders; |
• | recruitment or departure of key personnel; |
• | general economic trends and other external factors including inflation and interest rates; |
• | increased scrutiny by governmental authorities or individual actors or community groups regarding our business, our competitors or the industry in which we operate; |
• | publication of research reports by analysts and others about us or the cryptocurrency mining industry, which may be unfavorable, inaccurate, inconsistent or not disseminated on a regular basis; |
• | sentiment of retail investors about our Class A common stock and business generally (including as may be expressed on financial trading and other social media sites and online forums); and |
• | speculation in the media or investment community about us or the cryptocurrency industry more broadly. |
• | the hybrid nature of our business model, which is highly dependent on the price of Bitcoin; |
• | our ability to raise capital to fund our business growth; |
• | our dependence on the level of demand and financial performance of the crypto asset industry; |
• | our ability to manage our growth, business, financial results and results of operations; |
• | uncertainty regarding our evolving business model; |
• | our ability to maintain sufficient liquidity to fund operations, growth and acquisitions; |
• | our substantial indebtedness and its effect on our results of operations and our financial condition; |
• | uncertainty regarding the outcomes of any investigations or proceedings; |
• | our ability to retain management and key personnel and the integration of new management; |
• | our ability to enter into purchase agreements, acquisitions and financing transactions; |
• | our ability to maintain our relationships with our third-party brokers and our dependence on their performance; |
• | public health crises, epidemics, and pandemics such as the coronavirus (“COVID-19”) pandemic; |
• | our ability to procure crypto asset mining equipment from foreign-based suppliers; |
• | developments and changes in laws and regulations, including increased regulation of the crypto asset industry through legislative action and revised rules and standards applied by The Financial Crimes Enforcement Network under the authority of the U.S. Bank Secrecy Act and the Investment Company Act; |
• | the future acceptance and/or widespread use of, and demand for, Bitcoin and other crypto assets; |
• | our ability to respond to price fluctuations and rapidly changing technology; |
• | our ability to operate our coal refuse power generation facilities as planned; |
• | our ability to remain listed on a stock exchange and maintain an active trading market; |
• | our ability to avail ourselves of tax credits for the clean-up of coal refuse piles; and |
• | legislative or regulatory changes, and liability under, or any future inability to comply with, existing or future energy regulations or requirements. |
• | our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on April 3, 2023 (pursuant to Rule 12b-25 extension); |
• | our Definitive Information Statement on Schedule 14C, filed with the SEC on January 30, 2023; |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 12, 2023; |
• | our Current Reports on Form 8-K filed with the SEC (except for items 2.02 and 7.01) on January 3, 2023, January 13, 2023, February 7, 2023, February 24, 2023, March 13, 2023, March 21, 2023, March 22, 2023, April 3, 2023, April 5, 2023, April 24, 2023, May 5, 2023, and May 19, 2023; and |
• | the description of our capital stock contained in our Registration Statement on Form 8-A, dated October 19, 2021 and any amendment or report filed with the SEC for the purposes of updating such description, including Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on April 3, 2023. |
• | We are not required to engage an auditor to report on our internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002; |
• | We are not required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (i.e., an auditor discussion and analysis); |
• | We are not required to submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay,” “say-on-frequency” and “say-on-golden parachutes”; and |
• | We are not required to disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation to median employee compensation. |
• | the hybrid nature of our business model, which is highly dependent on the price of Bitcoin; |
• | our ability to raise capital to fund our and growth; |
• | our dependence on the level of demand and financial performance of the crypto asset industry; |
• | our ability to manage our growth, business, financial results and results of operations; |
• | uncertainty regarding our evolving business model; |
• | our ability to maintain sufficient liquidity to fund operations, growth and acquisitions; |
• | our substantial indebtedness and its effect on our results of operations and our financial condition; |
• | uncertainty regarding the outcomes of any investigations or proceedings; |
• | our ability to retain management and key personnel and the integration of new management; |
• | our ability to enter into purchase agreements, acquisitions and financing transactions; |
• | our ability to maintain our relationships with our third-party brokers and our dependence on their performance; |
• | public health crises, epidemics, and pandemics such as the coronavirus (“COVID-19”) pandemic; |
• | our ability to procure crypto asset mining equipment from foreign-based suppliers; |
• | developments and changes in laws and regulations, including increased regulation of the crypto asset industry through legislative action and revised rules and standards applied by The Financial Crimes Enforcement Network under the authority of the U.S. Bank Secrecy Act and the Investment Company Act; |
• | the future acceptance and/or widespread use of, and demand for, Bitcoin and other crypto assets; |
• | our ability to respond to price fluctuations and rapidly changing technology; |
• | our ability to operate our coal refuse power generation facilities as planned; |
• | our ability to remain listed on a stock exchange and maintain an active trading market; |
• | our ability to avail ourselves of tax credits for the clean-up of coal refuse piles; and |
• | legislative or regulatory changes, and liability under, or any future inability to comply with, existing or future energy regulations or requirements. |
• | the dividend rate and the manner and frequency of payment of dividends on the shares of that series, whether dividends will be cumulative, and, if so, from which date; |
• | whether that series will have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights; |
• | whether that series will have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the board of directors may determine; |
• | whether or not the shares of that series will be redeemable, and, if so, the terms and conditions of such redemption; |
• | whether that series will have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund; |
• | whether or not the shares of the series will have priority over or be on a parity with or be junior to the shares of any other series or class in any respect; |
• | the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution, or winding up of the corporation, and the relative rights or priority, if any, of payment of shares of that series; and |
• | any other relative rights, preferences, and limitations of that series. |
• | the transaction is approved by the Board before the date the interested shareholder attained that status; |
• | upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or |
• | on or after such time the business combination is approved by the Board and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the interested shareholder. |
• | establish advance notice procedures with regard to shareholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of shareholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our amended and restated bylaws specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting; |
• | provide that the authorized number of directors may be changed only by resolution of the Board, unless the second amended and restated certificate of incorporation fixes the number of directors, in which case, a change in the number of directors shall be made only by amendment of the certificate of incorporation; |
• | provide that our second amended and restated certificate of incorporation may only be amended by the affirmative vote of the holders of at least 50% of our then outstanding of stock in the Company entitled to voted thereon, voting together as a single class; |
• | provide that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum; |
• | provide that prior to the date on which Q Power and its affiliates no longer beneficially owns 40% or more of the combined outstanding shares of Class A common stock and Class V common stock (the “Trigger Date”), any action required or permitted to be taken at any annual meeting or special meeting of the stockholders of the Company may be taken without a meeting, without prior notice and without a vote of stockholders, if a consent or consents in writing, setting forth the action so taken, is or are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. On and after the Trigger Date, subject to the rights of holders of any series of preferred stock with respect to such series of preferred stock, any action required or permitted to be taken by our stockholders must be taken at a duly held annual or special meeting of stockholders and may not be taken by any consent in writing; |
• | provide that the affirmative vote of the holders of at least 66 2/3% of the outstanding shares of common stock entitled to vote generally in the election of directors, acting at a meeting of the stockholders or by written consent (if permitted), subject to the rights of the holders of any series of preferred stock, shall be required to remove any or all of the directors from office, and such removal may be with or without “cause”; |
• | provide that special meetings of our stockholders may only be called by the chief executive officer, the chairman of the board (or any co-chairman), or by a majority of the board; |
• | provide that our bylaws can be amended by the Board or stockholders of 66 2/3% of the voting power of the then-outstanding shares of stock entitled to vote thereon; and |
• | prohibit cumulative voting for the election of directors, unless otherwise provided in the second amended and restated certificate of incorporation. |
• | any derivative action or proceeding brought on our behalf; |
• | any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders; |
• | any action asserting a claim against us or any director or officer or other employee of ours arising pursuant to any provision of the DGCL, our second amended and restated certificate of incorporation or our bylaws; or |
• | any action asserting a claim against us or any director or officer or other employee of ours that is governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. |
• | for any breach of their duty of loyalty to us or our stockholders; |
• | for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
• | for unlawful payment of dividend or unlawful stock repurchase or redemption, as provided under Section 174 of the DGCL; or |
• | for any transaction from which the director derived an improper personal benefit. |
• | the title of the warrants; |
• | the offering price for the warrants, if any; |
• | the aggregate number of the warrants; |
• | the designation and terms of the shares of Class A common stock or shares of preferred stock that may be purchased upon exercise of the warrants; |
• | the terms for changes or adjustments to the exercise price of the warrants; |
• | if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; |
• | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
• | the number of shares of Class A common stock or shares of preferred stock that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise; |
• | the dates on which the right to exercise the warrants commence and expire; |
• | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
• | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
• | if applicable, a discussion of material U.S. federal income tax considerations; |
• | anti-dilution provisions of the warrants, if any; |
• | redemption or call provisions, if any, applicable to the warrants; |
• | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and |
• | any other information we think is important about the warrants. |
• | if applicable, a discussion of material United States federal income tax considerations; and |
• | any other information we think is important about the stock purchase contracts. |
• | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
• | the aggregate number of, and the price at which we will issue, the units; |
• | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
• | whether the units will be issued in fully registered or global form; |
• | the name of the unit agent; |
• | a description of the terms of any unit agreement to be entered into between us and a bank or trust company, as unit agent, governing the units; |
• | if applicable, a discussion of material United States federal income tax considerations; and |
• | whether the units will be listed on any securities exchange. |
• | the date on which stockholders entitled to the rights distribution will be determined; |
• | the aggregate number of shares of Class A common stock or preferred stock purchasable upon exercise of the rights; |
• | the exercise price; |
• | the aggregate number of rights issued; |
• | the date, if any, on and after which the rights will be separately transferable; |
• | the date on which the ability to exercise the rights will commence, and the date on which such ability will expire; |
• | the conditions to the completion of the offering, if any; |
• | the withdrawal, termination, and cancellation rights, if any; |
• | any applicable material U.S. federal income tax considerations; and |
• | and other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange, and exercise of the rights. |
• | banks, insurance companies or other financial institutions; |
• | tax-exempt or governmental organizations; |
• | tax qualified retirement plans; |
• | “qualified foreign pension funds” as defined in Section 897(l)(2) of the Code (or any entities all of the interests of which are held by a qualified foreign pension fund); |
• | dealers in securities or foreign currencies; |
• | persons whose functional currency is not the U.S. dollar; |
• | traders in securities that use the mark-to-market method of accounting for U.S. federal income tax purposes; |
• | “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax; |
• | entities or arrangements treated as partnerships or pass-through entities for U.S. federal income tax purposes or holders of interests therein; |
• | persons deemed to sell our Class A common stock under the constructive sale provisions of the Code; |
• | persons that acquired our Class A common stock through the exercise of employee stock options or otherwise as compensation or through a tax-qualified retirement plan; |
• | persons that hold our Class A common stock as part of a straddle, appreciated financial position, synthetic security, hedge, conversion transaction or other integrated investment or risk reduction transaction; and |
• | certain former citizens or long-term residents of the United States. |
• | an individual who is a citizen or resident of the United States; |
• | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
• | an estate the income of which is subject to U.S. federal income tax regardless of its source; or |
• | a trust (i) the administration of which is subject to the primary supervision of a U.S. court and which has one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) who have the authority to control all substantial decisions of the trust or (ii) which has made a valid election under applicable U.S. Treasury regulations to be treated as a United States person. |
• | the non-U.S. holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met; |
• | the gain is effectively connected with a trade or business conducted by the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment maintained by the non-U.S. holder in the United States); or |
• | our Class A common stock constitutes a United States real property interest by reason of our status as a United States real property holding corporation (“USRPHC”) for U.S. federal income tax purposes and as a result such gain is treated as effectively connected with a trade or business conducted by the non-U.S. holder in the United States. |
• | whether the investment is prudent under Section 404(a)(1)(B) of ERISA and any other applicable Similar Laws; |
• | whether, in making the investment, the ERISA Plan will satisfy the diversification requirements of Section 404(a)(1)(C) of ERISA and any other applicable Similar Laws; |
• | whether the investment is permitted under the terms of the applicable documents governing the Plan; |
• | whether the acquisition or holding of the shares of common stock will constitute a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code (please see discussion under “—Prohibited Transaction Issues” below); and |
• | whether the Plan will be considered to hold, as the Plan’s assets, (i) only shares of common stock or (ii) an undivided interest in our underlying assets (please see the discussion under “—Plan Asset Issues” below). |
(a) | the equity interests acquired by ERISA Plans are “publicly offered securities” (as defined in the DOL regulations)—i.e., the equity interests are part of a class of securities that is widely held by 100 or more investors independent of the issuer and each other, are freely transferable, and are either registered under certain provisions of the federal securities laws or sold to the ERISA Plan as part of a public offering under certain conditions; |
(b) | the entity is an “operating company” (as defined in the DOL regulations)—i.e., it is primarily engaged in the production or sale of a product or service, other than the investment of capital, either directly or through a majority-owned subsidiary or subsidiaries; or |
(c) | there is no significant investment by “benefit plan investors” (as defined in the DOL regulations)—i.e., immediately after the most recent acquisition by an ERISA Plan of any equity interest in the entity, less than 25% of the total value of each class of equity interest (disregarding certain interests held by persons (other than benefit plan investors) with discretionary authority or control over the assets of the entity or who provide investment advice for a fee (direct or indirect) with respect to such assets, and any affiliates thereof) is held by ERISA Plans, individual retirement accounts and certain other Plans (but not including governmental plans, foreign plans and certain church plans), and entities whose underlying assets are deemed to include plan assets by reason of a Plan’s investment in the entity. |
• | through underwriters, initial purchasers, brokers or dealers; |
• | directly to agents or other purchasers; |
• | in a rights offering; |
• | in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise; |
• | through agents; |
• | through a combination of any of these methods; or |
• | through any other method permitted by applicable law and described in a prospectus supplement. |
• | the terms of the offering; |
• | the names of any underwriters, dealers, agents or direct purchasers; |
• | the name or names of any managing underwriter or underwriters; |
• | the purchase price or initial public offering price of the securities; |
• | the net proceeds from the sale of the securities; |
• | any delayed delivery arrangements; |
• | any underwriting discounts, commissions and other items constituting underwriters’ compensation; |
• | any discounts or concessions allowed or reallowed or paid to dealers; |
• | any commissions paid to agents; and |
• | any securities exchange on which the securities may be listed. |