EXHIBIT 5.1
Davidoff Hutcher & Citron LLP
605 Third Avenue, 34th Floor
New York, NY 10158
April 24, 2015
Blue Earth, Inc.
2298 Horizon Ridge Parkway, Suite 205
Henderson, NV 89052
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Blue Earth, Inc., a Nevada corporation (the “Company”), in connection with the proposed issuance and sale of an aggregate of 21,019,105 shares of Common Stock $.001 par value per share (the “Common Stock”), pursuant to the Company’s Registration Statement on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) on this date.
The shares being registered under the Registration Statement consist of (i) 10,600,000 shares issuable upon conversion of a 12% Senior Secured Convertible Note (“Note”) and/or Option and 600,000 shares issuable upon payment of interest on the Note in lieu of cash; (ii) 2,000,000 shares issuable upon exercise of Warrants; (iii) up to 3,061,225 shares issuable upon conversion of Series D Convertible Preferred Stock; and (iv) 5,357,880 shares of common stock issued and outstanding.
This opinion letter (the “Opinion Letter”) is being rendered in accordance with the requirements of Item 16(a) of Form S-1 and Item 601(b)(5)(i) of Regulation S-K in connection with the filing of the Registration Statement. Unless otherwise indicated, capitalized terms used herein shall have the meanings ascribed thereto in the Registration Statement.
In connection with the opinions expressed herein, we have examined originals or copies, certified or otherwise identified to our satisfaction as true, correct and complete, of such agreements, instruments, documents and records in each case as we have deemed necessary or appropriate for the purposes of expressing the opinions set forth in this Opinion Letter. We have examined the following (collectively, the “Documents”):
(a)
The Company’s Certificate of Amendment to Articles of Incorporation, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on July 23, 2014;
(b)
The Company’s Articles of Incorporation, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on October 29, 2010;
(c)
The Company’s By-Laws, filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed on October 29, 2010;
(d)
The Company’s Specimen Certificate for the Common Stock filed as Exhibit 4.1 to the Company’s Annual Report on Form 10-K for December 31, 2010;
(e)
The Company’s Certificate of Designation, Rights and Preferences of Series D Convertible Preferred Stock (“Certificate of Designation”), filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on February 27, 2015.
(f)
The Company’s Note and Warrant Purchase Agreement dated as of March 10, 2015 filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 13, 2015.
(g)
The Company’s Equity Exchange Agreement dated as of October 27, 2014, filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on October 31, 2014.
(h)
The Company’s Warrant dated as of March 10, 2015.
(i)
The Company’s corporate minutes books or other records pertaining to the proceedings of the stockholders and directors of the Company; and
(j)
The Company’s stock transfer ledgers and records.
The opinions expressed herein are based upon (i) our review of the Documents, (ii) discussions with Dr. Johnny R. Thomas, President and Chief Executive Officer with respect to the Documents (as defined below), (iii) discussions with those of our attorneys who have devoted substantive attention to the matters contained herein, and (iv) such review of public sources of law as we have deemed necessary.
The opinions expressed herein are limited to the laws of the State of New York, the general corporate laws of the State of Nevada, and Federal law of the United States of America, including the statutory provisions, and applicable provisions of the Nevada Constitution, Nevada Revised Statutes, and the reported judicial decisions interpreting those laws and to Federal law of the United States of America currently in effect.
Based upon and subject to the foregoing, we are of the opinion that:
1.
The Outstanding Shares have been duly authorized and are lawfully and validly issued, fully paid and non-assessable.
2.
The shares of Common Stock underlying the Warrants set forth in this Opinion have been duly authorized, and upon the exercise and payment of the Warrants as descried in the Registration Statement, will be lawfully and validly issued, fully paid, and non-assessable.
3.
The shares of Common Stock underlying the Series D Convertible Preferred Stock set forth in this Opinion have been duly and validly authorized and, when issued in accordance with the terms of the Certificates of Designation, will be lawfully and validly issued, fully paid, and non-assessable.
4.
The shares of Common Stock underlying the Note and/or Option set forth in this Opinion have been duly and validly authorized and when issued in accordance with the terms of the Note and/or Option, will be lawfully and validly issued, fully paid and non-assessable.
We consent to the filing of this Opinion Letter as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the heading “Legal Matters” in the prospectus which is part of the Registration Statement.
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, the rules and regulations of the Securities and Exchange Commission promulgated thereunder, or Item 509 of Regulation S-K.
The opinions expressed herein are rendered as of the date hereof, and we disclaim any undertaking to advise you hereafter of developments hereafter occurring or coming to our attention, whether or not the same would (if now existing or known to us) require any change or modification herein.
The opinions expressed in this Opinion Letter are limited solely to the matters expressly set forth above. No other opinions are intended, nor should any other opinion be inferred herefrom.
Very truly yours,
DAVIDOFF HUTCHER & CITRON LLP
/s/Elliot H. Lutzker
Elliot H. Lutzker, Partner
