Exhibit 10. 1
DATED 2023-02-15
FUTURE
SALES AND PURCHASE AGREEMENT
BETWEEN
CRYPT SOLUTIONS, INC. (“CRYPT”)
and
CLEANSPARK, INC. (“PURCHASER”)
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THIS AGREEMENT (the “Agreement”) is made on 2023-02-15.
BETWEEN:
Each of the parties to this Agreement is referred herein individually as a “Party” and collectively as the “Parties”.
WHEREAS:
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement, the Parties agree as follows:
“Affiliate(s)” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person.
“Applicable Law(s)” means any treaty, law, decree, order, regulation, decision, statute, ordinance, rule, directive, code or other document that has legal force under any system of law, including, without limitation, local law, law of any other state or part thereof or international law, and which creates or purports to create any requirement or rule that may affect, restrict, prohibit or expressly allow the terms of this Agreement or any activity contemplated or carried out under this Agreement.
“BITMAIN” means BITMAIN TECHNOLOGIES DELAWARE LIMITED, the manufacturer of the Products, and its Affiliates.
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“Business Day(s)” means a day (other than Saturday or Sunday) on which banking institutions in the Relevant Jurisdictions are open generally for normal banking business.
“Contracted Hashrate” means the aggregation of the hashrate of all the Products as set forth in Appendix A.
“Control” means, with respect to any Person, the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, provided that in the case of a Person that is an entity, such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the holders of the shares or other equity interests or registered capital of such Person or power to control the composition of a majority of the board of directors or similar governing body of such Person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing.
“Force Majeure” means in respect of either Party, any event or occurrence whatsoever beyond the reasonable control of that Party, non-foreseeable, or even if foreseen, was unavoidable and occurs after the date of this Agreement in or affecting the Relevant Jurisdictions. “Force Majeure Event(s)” include, without limitation, war (declared or undeclared), terrorist activities, acts of sabotage, blockade, fire, lightning, acts of God, national strikes, riots, insurrections, civil commotions, quarantine restrictions, epidemics, earthquakes, landslides, avalanches, floods, hurricanes, explosions, acts of government, and other instances which are accepted as a force majeure event in general international commercial practice. For the avoidance of doubt, any prohibition or restriction in relation to the production and/or sale of cryptocurrency mining hardware declared by any Governmental Authority (other than the local Governmental Authority with competent authority over Crypt, BITMAIN or Purchaser) shall not constitute a Force Majeure Event.
“Governmental Authority” means any government of any nation, federation, province, state or locality or any other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of any country, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization.
“Intellectual Property Rights” means any and all intellectual property rights, including but not limited to those concerning inventions, patents, utility models, registered designs and models, engineering or production materials, drawings, trademarks, service marks, domain names, applications for any of the foregoing (and the rights to apply for any of the foregoing), proprietary or
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business sensitive information and/or technical know-how, copyright, authorship, whether registered or not, and any neighbor rights.
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“Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity (whether or not having separate legal personality).
“Product(s)” means the cryptocurrency mining hardware and other equipment or merchandise that Crypt will sell to the Purchaser in accordance with this Agreement, details of which are set forth in Appendix A.
“Quantity of the Products” means 20,000, being the quotient of the Contracted Hashrate divided by Rated Hashrate per Unit as set forth in Appendix A, which is for reference only and shall not be deemed as any representation, warranty or covenant made by Crypt. The Quantity of the Products shall be automatically adjusted in accordance with the change (if any) of the Rated Hashrate per Unit of the delivered Products.
“Rated Hashrate per Unit” means the rated hashrate of each unit of the Products as set forth in Appendix A.
“Relevant Jurisdictions” means the State of Delaware, and the Commonwealth of Massachusetts, the United States.
“Shipping Period” means the estimated time period when Crypt shall ship the applicable batch of Products on condition that the Purchaser has fulfilled its payment obligations hereunder, as set forth in Appendix A.
“Total Purchase Price” means $ 43,560,000.00.
“US$” or “US Dollars” means the lawful currency of the United States of America.
“Warranty Period” means the period of time that the Products are covered by the warranty granted by BITMAIN in accordance with Clause 6.
“Warranty Start Date” means the date on which the Products are delivered to the carrier as recorded on BITMAIN Website.
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3.1. The Purchaser shall pay the Total Purchase Price of each batch of Products in tranches in accordance with the payment schedule as set forth in Appendix B.
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( ) Shipping by Crypt via FedEx/DHL/UPS/other logistics company
(X) Self-pick-up by Purchaser
Logistics costs shall be borne by the Purchaser. Crypt shall be entitled to collect payments on behalf of the logistics service providers and issue logistics service invoices if the Purchaser requests Crypt to send the Products.
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/component of the Product(s) or the defective Product(s) at no charge to the Purchaser. If the Purchaser requires BITMAIN to provide any Warranty services, the Purchaser shall complete the appropriate actions on the BITMAIN Website in accordance with the requirements of BITMAIN and send the Product(s) to the place designated by BITMAIN within the time limit required by BITMAIN. Otherwise, BITMAIN shall be entitled to refuse to provide the Warranty services.
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In case the warranty is voided, BITMAIN may, at its sole discretion, provide repair service to the Purchaser, and the Purchaser shall bear all related expenses and costs.
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to the Products, and no warranties of any kind, whether written, oral, express, implied or statutory, including warranties of merchantability, fitness for a particular purpose or non-infringement or arising from course of dealing or usage in trade shall apply.
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Agreement and/or, achieved, derived from, related to, connected with the provision of the Products by BITMAIN and/or acquired by BITMAIN from any other person in performance of this Agreement shall be the exclusive property of BITMAIN and/or its Affiliates.
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any unauthorized person. The Purchaser undertakes and agrees to take all reasonable and practicable steps to ensure and protect the confidentiality of the Confidential Information which cannot be passed, sold, traded, published or disclosed to any unauthorized person.
If to the Crypt:
Attn: Joseph Stefanelli
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Phone: +1-4133554676
Email: joe@cryptech.solutions
If to Purchaser:
Attn: Zachary Bradford, CEO
Phone: 702-989-7692
Email: zach@cleanspark.com, with a copy to Legal@cleanspark.com
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U.S. Government, or (c) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (x) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (y) the
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design, development, production, or use of missiles or support of missiles projects; and (z) the design, development, production, or use of chemical or biological weapons. The Purchaser further agrees that it will not do any of the foregoing in violation of any restriction, law, or regulation of the European Union or an individual EU member state that imposes on an exporter a burden equivalent to or greater than that imposed by the U.S. Bureau of Industry and Security.
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that the Force Majeure Event may delay, prevent or hinder such Party from performing its obligations under this Agreement; and (ii) use its best effort to remove any such causes and resume performance under this Agreement as soon as reasonably practicable and mitigate its effects.
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Failure by either Party to enforce at any time any provision of this Agreement, or to exercise any election of options provided herein shall not constitute a waiver of such provision or option, nor affect the validity of this Agreement or any part hereof, or the right of the waiving Party to thereafter enforce each and every such provision or option.
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.
Each Party undertakes to the other Party to execute or procure to be executed all such documents and to do or procure to be done all such other acts and things as may be reasonable and necessary to give all Parties the full benefit of this Agreement.
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Signed for and on behalf of Crypt
Crypt Solutions Inc.
Signature /s/ Joseph Stefanelli
Title
Signed for and on behalf of the Purchaser
CleanSpark, Inc.
Signature /s/ Zach Bradford
Title CEO
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APPENDIX A
Type | Details |
Product Name | HASH Super Computing Server |
Model | ANTMINER S19j Pro+ |
Rated hashrate per unit, TH/s | 122.00 |
Rated power per unit, W | 3,355.00 |
J/TH/s | 27.5 |
Contracted Hashrate, TH/s | 2,440,000.00 |
Quantity of the Products | 20,000 |
Description | 1. Crypt undertakes that the error range of the J/T indicator does not exceed 10%. 2. The Rated Hashrate per Unit and rated power per unit are for reference only and such indicator of each batch or unit of Products may differ. Crypt makes no representation on the Rated Hashrate per Unit and/or the rated power per unit of any Products. Purchaser shall not reject the Products on the grounds that the parameters of the delivered Products are not in consistence with the reference indicators. 3. The Products should cable with C20 connector. |
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Batch |
Model |
Shipping Period |
Reference Quantity | Total Rated Hashrate (TH/s) |
Corresponding Total Purchase Price(US$) |
1st |
S19j Pro+ |
2023-03* |
3,000 |
732,000.00 |
6,534,000.00 |
2nd | S19j Pro+ | 2023-03 | 7,000 | 1,780,000 | 15,246,000 |
3rd |
S19j Pro+ |
2023-04 |
10,000 |
1,220,000.00 |
21,780,000.00 |
In Total | 20,000 | 2,440,000.00 | 43,560,000.00 |
Note *: Crypt agrees that it shall use commercially reasonable efforts to ship the 1st batch of Products as soon as practicable after the Purchaser has paid in full the 1st Installment Payment and the 2nd Installment Payment in accordance with Appendix B.
1.3 Total Purchase Price (tax exclusive): US$ 43,560,000.00
Malaysia, or Thailand.
1.5 In the event that BITMAIN publishes any new type of products with less J/T value and suspends the production of the type of the Products as agreed in this Agreement, Crypt shall be entitled to release itself from any future obligation to deliver any subsequent Products by 10-day prior notice to the Purchaser and continue to deliver new types of products to the Purchaser, the total hashrate of which shall be no less than such subsequent Products replaced under this Agreement and the price of which shall be determined in accordance with the J/T value. In the event that the Purchaser explicitly refuses to accept new types of products, the Purchaser is entitled to request for a refund of
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the remaining balance of the Total Purchase Price already paid by the Purchaser. If the Purchaser accepts the new types of Products delivered by Crypt, Crypt shall be obliged to deliver such new types of products to fulfill its obligations under this Agreement. The Purchaser may request to lower the total hashrate of the products delivered but shall not request to increase the total hashrate to the level exceeding the total hashrate as set out in this Agreement. After BITMAIN publishes new types of products and if BITMAIN has not suspended the production of the types of Products under this Agreement, Crypt shall continue to delivery such agreed types of Products in accordance with this Agreement and the Purchaser shall not terminate this Agreement or refuse to accept the Products on the grounds that BITMAIN has published new type(s) of products.
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APPENDIX B
Payment | $ Amount |
Payment Date |
Down Payment |
$3,267,000 | The Purchaser has paid the Down Payment to Crypt on or before the date of this Agreement.
|
1st Installment Payment |
$2,178,000 | The 1st Installment Payment less any Coupons up to 30% of installment payment shall be paid by the Purchaser on or before February 21st, 2023. |
2nd Installment Payment |
$15,224,220 | The 2nd Installment Payment less any Coupons up to 30% of installment payment shall be paid by the Purchaser on or before February 27th, 2023. |
Balance Payment |
$22,890,780 | The Balance Payment less any Coupons up to a total of 30% of the entire contract shall be paid by the Purchaser no later than March 24th, 2023 |
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