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EXHIBIT 10.1
DATED Oct 6th, 2023
FUTURE
SALES AND PURCHASE AGREEMENT
(Antminer S21-Phase I)
BETWEEN
BITMAIN TECHNOLOGIES DELAWARE LIMITED
("BITMAIN")
and
CleanSpark Inc. ("PURCHASER")
BM Ref: S21-XS-[
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THIS AGREEMENT (the "Agreement") is made on Oct 6th, 2023.
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.
"Business Day(s)" means a day (other than Saturday or Sunday) on which banking institutions in the Relevant Jurisdiction 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
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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.
"Digital Currency" means Bitcoin, USDT, USDC or any other digital currency as agreed between the Parties in writing.
"Fiat Currency" means US Dollar, or any other government-issued currency designated as legal tender in its country of issuance through government decree, regulation, or law.
"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 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 business sensitive information and/or technical know-how, copyright, authorship, whether registered or not, and any neighbor rights.
"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).
"Purchase Unit Price" the per unit T price of the Products, as set forth in Appendix A.
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"Product(s)" means the cryptocurrency mining hardware and other equipment or merchandise that BITMAIN will sell to the Purchaser in accordance with this Agreement, details of which are set forth in Appendix A.
"Quantity of the Products" means 12,600, 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 BITMAIN. 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 Jurisdiction" means the State of Delaware, the United States.
"Shipping Period" means the estimated time period when BITMAIN 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 US$88,200,000.00, being the product of Purchase Unit Price multiplied by the Contracted Hashrate.
"US$" or "US Dollar(s)" 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 or its Affiliates in accordance with Clause 6.
"Warranty Start Date" means the date on which the Products are delivered pursuant to Clause 4.1 as recorded on BITMAIN Website.
1.2 In this Agreement, unless otherwise specified:
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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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governmental charges and duties connected with the services provided by BITMAIN or the payment of any amounts hereunder. The Purchaser agrees to provide BITMAIN with the tax payment certificate or acknowledgement or the confirmation email issued by the relevant state tax authorities regarding the above mentioned taxes as applicable.
(30) days after the expiration of the Shipping Period as set forth in Appendix A, the Purchaser shall be entitled to cancel such batch of Products and request BITMAIN to refund
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the respective price of such undelivered batch of Products already paid by the Purchaser together with an interest at 0.0333% per day for the period from the next day of each payment of the price of such batch of Products to the date immediately prior to the request. In the event that the Purchaser does not cancel undelivered batch of Products and requests BITMAIN to perform its delivery obligation, BITMAIN shall continue to perform its delivery obligation and compensate the Purchaser in accordance with Clause 4.5 of this Agreement.
(30) days after expiration of the Shipping Period as set forth in Appendix A and the Purchaser does not cancel such batch of Products and requests BITMAIN to perform its delivery obligations, BITMAIN shall make a compensation to the Purchaser on daily basis, the amount of which shall equal to 0.0333% of the respective price of such undelivered batch of Products, which already paid by the Purchaser, which compensation shall be made in the form of delivery of more Products increasing the total hashrate. Compensation amount less than the equivalence to the Rated Hashrate per Unit of Product shall be credited to the balance of the Purchaser.
□ Shipping by BITMAIN via FedEx/OHL/UPS/other logistics company;
☑ Self-pick
Logistics costs shall be borne by the Purchaser. BITMAIN shall be entitled to collect payments on behalf of the logistics service providers and issue logistics service invoices if the Purchaser requests BITMAIN to send the Products. If the Purchaser requests BITMAIN to send the Products on behalf of the Purchaser, BITMAIN will send a shipping confirmation to the Purchaser after it has delivered the Products to the carrier.
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(2) business days (the "Acceptance Time") after receiving the Products (the date of signature on the carrier's delivery voucher shall be the date of receipt, or the date when the Purchaser self-picks up the Products, whichever is applicable). If the Purchaser does not raise any written objection within the Acceptance Time, the Products delivered by BITMAIN shall be deemed to be in full compliance with the provisions of this Agreement. The Products delivered are neither returnable nor refundable.
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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.
U) damage or loss of data caused by improper usage and behavior which is not recommended and/or permitted in the product documentation provided by BITMAIN;
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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requirements or the Products will be uninterrupted or error free. Except as provided in Clause 6.1, BITMAIN makes no warranties to the Purchaser with respect 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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person in performance of this Agreement shall be the exclusive property of BITMAIN and/or its Affiliates.
10.2 Notwithstanding anything to the contrary herein, all Intellectual Property Rights in the Products shall remain the exclusive property of BITMAIN and/or its Affiliates and/or its licensors. Except for licenses explicitly identified in BITMAIN's shipping confirmation or in this Clause 10.2, no rights or licenses are expressly granted, or implied, whether by estoppel or otherwise, in respect of any Intellectual Property Rights of BITMAIN and/or its Affiliates or any Intellectual Property residing in the Products provided by BITMAIN to the Purchaser, including in any documentation or any data furnished by BITMAIN. BITMAIN grants the Purchaser a non-exclusive, non-transferrable, royalty-free and irrevocable license of BITMAIN and/or its Affiliates' Intellectual Property Rights to solely use the Products delivered by BITMAIN to the Purchaser for their ordinary function, and subject to the provisions set forth herein. The Purchaser shall in no event violate the Intellectual Property Rights of BITMAIN and/or its Affiliates and/or its licensors.
l0.3 The Purchaser shall not illegally use or infringe the Intellectual Property Rights of the Products in any way. Otherwise, BITMAIN shall have the right to request the Purchaser to take immediate remedial measures and assume full responsibilities, including but not limited to ceasing the infringement immediately, eliminating the impact, and compensating BITMAIN and/or its Affiliates for all losses arising out of the infringement, etc.
l0.4 The Purchaser shall not use any technical means to disassemble, mapping or analyze the Products of BITMAIN, and shall not reverse engineer or otherwise attempt to derive or obtain information about the function, manufacture or operation of the Products, to retrieve relevant technical information of the Products and use it for commercial purposes. Otherwise, the Purchaser shall be liable for losses caused to BITMAIN in accordance with Clause 10.3.
l0.5 If applicable, payment by the Purchaser of non-recurring charges to BITMAIN for any special designs, or engineering or production materials required for BITMAIN's performance of obligations for customized Products, shall not be construed as payment for the assignment from BITMAIN to the Purchaser of title to such special design, engineering or production materials. BITMAIN shall be the sole owner of such special designs, engineering or production materials with regard to such Products.
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any discretionary press release nor Securities Exchange Commission filings in any form it believes is required by applicable laws or rules.
I 2.1 The Parties agree that, unless this Agreement specifies otherwise, no Party shall terminate this Agreement in advance.
12.2 This Agreement shall be effective upon execution by both Parties of this Agreement and shall remain effective up to and until the delivery of all Products.
13.l All notices, requirements, requests, claims, and other communications in relation to this Agreement shall be in writing, and shall be given or made by delivery in person, by an internationally recognized overnight courier service, by facsimile or registered or certified mail (postage prepaid, return receipt requested) or electronic mail to the respective Parties at the addresses specified below or at such other address for a Party as may be specified in a notice given in accordance with this Clause 13.
If to the Purchaser:
Address: 2370 Corporate Circle, Suite 160, Henderson, NV 89074 Attn: Zachary Bradford, CEO
Phone: 702-989-7692
Email: Zach@cleanspark.com
If to BITMAIN:
Address: 840 New Burton Street, Suite 201, Dover, Kent, DE 19904 Attn: Alyssa.liu
Phone: +86 189 592 l 7309
Email: Alyssa.liu@bitmain with a copy to legal@bitmain.com and invoice@bitmain.com
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(y) the 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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Majeure Event and the extent to which the claiming Patty expects 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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Signed for and on behalf of BITMAIN
BITMAIN TECHNOLOGIES DELAWARE LIMITED
Signature
Signed for and on behalf of the Purchaser
CleanSpark Inc.
Signature /s/ Zachary Bradford
Chief Executive Officer
Title
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APPENDIX A
Type | Details |
Product Name | HASH Super Computing Server |
Model | S2l-200.0T |
Rated Hashrate per Unit, T | 200.00 ±10% |
Rated power per Unit, W | 3,500.00 |
J/T | 17.5 |
Contracted Hashrate, T | 2,520,000.00 |
Quantity of the Products | 12,600 |
Quantity of the additional Products for free |
9,450 |
Description | l. BITMAIN 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. BITMAIN makes no representation on the Rated Hashrate per Unit and/or the rated power per unit of any Products. 3. Purchaser shall not reject the Products on the grounds that the parameters of the delivered Products are not in consistence with the reference indicators. |
accordance with the following arrangements:
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Batch |
Model |
Shipping Period |
Reference Quantity | Total Rated Hashrate (T) (exclusive of the Hashrate of the Additional Products for Free) |
Quantity of the Additiona I Products for Free | Total Hash rate (T) of the Addit ional Prod ucts for Free |
Purch ase Unit T Price (US$/ T) |
Corresp onding Total Purchas e Price (US$) |
I |
S21 |
Jan, 2024 |
2,100 |
420,000 |
0 |
0 |
35 | 14,700,0 00.00 |
2 |
S21 | Feb, 2024 |
2,100 |
420,000 |
0 |
0 |
35 | 14,700,0 00.00 |
3 |
S21 | Mar, 2024 |
2,100 |
420,000 |
0 |
0 |
35 | 14,700,0 00.00 |
4 |
S21 | Apr, 2024 |
2,100 |
420,000 |
3,150 | 630,0 00 |
35 | 14,700,0 00.00 |
5 |
S21 | May, 2024 |
2,100 |
420,000 |
3,150 | 630,0 00 |
35 | 14,700,0 00.00 |
6 |
S21 | Jun, 2024 |
2,100 |
420,000 |
3,150 | 630,0 00 |
35 | 14,700,0 00.00 |
In Total |
12,600 |
2,520,000 |
9,450 | 1,890 ,000 |
| 88,200, 000.00 |
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G) loss, damage or expense caused by (1) war, civil war, revolution, rebellion, insurrection, or civil strife arising therefrom, or any hostile act by or against a belligerent power, (2) capture, seizure, arrest, restraint or detainment (piracy excepted), and the consequences thereof or any attempt threat, (3) derelict mines, torpedoes, bombs, or other derelict weapons of war; and
(k) loss, damage, or expense caused by strikers, locked-out workmen, or persons taking part in labor disturbances, riots or civil commotion, resulting from strikes, lock-outs, labor disturbances, riots or civil commotions, caused by any terrorist or any person acting from a political motive.
Company Name: Bitmain Technologies Limited
Company address: I1/F., Wheelock House, 20 Pedder Street, Central, Hong Kong Account No.: 36807848057
Bank name: Standard Chartered Bank (Hong Kong) Limited
Bank address: Payment Centre, 15/F, Standard Chartered Tower, 388 Kwun Tong Road, Kwun Tong, Kowloon, Hong Kong
Swift Code: SCBLHKHHXXX
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Digital Currency shall be USDT. In any circumstance, the Purchaser shall not ask for any refund due to the change of exchange rate.
(3) batches of Products in accordance with Clause l.2 of Appendix A. For the avoidance of doubt, the total quantity of the additional Products shipped during the respective Shipping Period of the remaining three (3) batch of the Products shall not be regarded as part of those batches of Products.
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APPENDIX B
Payment | Payment Percentage |
Payment Date |
Down Payment |
20% | 20% of the Total Purchase Price of all batches of Products hereunder($ l 7,640,000), plus 30% of the January batch of products ($4,410,000) shall be paid by the Purchaser on or before October 13, 2023, less the deposit ($4,000,000) previously paid by the Purchaser, less coupons to be applied(up to $6,615,000). Down Payment shall equal, $11,435,000 $USD, after coupons and deposits are applied. |
Interim Payment |
30% | 30% of the Total Purchase Price of each batch of Products shall be paid: (a) at least three (3) months prior to the first day of the Shipping Period of such batch of Products, or (b) within seven (7) days after the execution of this Agreement, if this Agreement is executed within three (3) months prior to the first day of the Shipping Period of such batch of Products |
Interim Payment |
30% | 30% of the Total Purchase Price of each batch of Products shall be paid: (a) one (l) month prior to the first day of the Shipping Period of such batch of Products, or (b) within seven (7) days after the execution of this Agreement, if this Agreement is executed within one (1) month prior to the first day of the Shipping Period of such batch of Products |
Balance Payment |
20% | 20% of the Total Purchase Price of each batch of Products shall be paid on the 365th day after the date specified in the Ready-to-Ship Notification for that batch of Products. In the event that the Purchaser makes such Balance Payment in BTC, the amount of the BTC payable by the Purchaser shall be calculated based on the averaging price of Bitcoin from Chainlink at the date of the execution of this Agreement and shall not be subject to any fluctuations in the price of Bitcoin occurring after such date. |
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)
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