*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) would be competitively harmful if publicly disclosed.
Exhibit 10.36
EXECUTION VERSION
DATED 2023-12-15
FUTURE
SALES AND PURCHASE AGREEMENT (ANTMINER T21)
BETWEEN
BITMAIN TECHNOLOGIES DELAWARE LIMITED (“BITMAIN”)
and
Cipher Mining Infrastructure LLC
(“PURCHASER”)
BM Ref: T21-XS-00120231215005
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THIS AGREEMENT (the “Agreement”) is made on 2023-12-15.
BETWEEN:
laws of the State of Delaware, the United States (File Number: 6096946), having its principal address at 840 New Burton Street, Suite 201, Dover, Kent, DE 19904(“BITMAIN”); and
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,
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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.
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“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.
“Digital Currency” means Bitcoin, USDT, USDC or any other digital currency as agreed between the Parties in writing.
“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) 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,
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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 Terahash (“T”) unit price of the Products, as set forth in Appendix A.
“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 (and Appendix C, if applicable).
“Quantity of the Products” means 37,396, being the quotient of the Contracted Hashrate divided by Rated Hashrate per Unit as set forth in Appendix A, excluding any Forward Deliverables pursuant to Appendix C, 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
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Appendix A, which is for reference only and shall not be deemed as any representation, warranty or covenant made by BITMAIN.
“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 and Appendix C, as the case may be.
“Total Purchase Price” means US$ 99,473,360.00, being the multiplication product of Purchase
Unit Price multiplied by Contracted Hashrate, but excluding the Call Purchase Fee and Call Purchase Price contemplated in Appendix C.
“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.
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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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BITMAIN:
instructions.
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https://shop.bitmain.com
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(the
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“BITMAIN Website”) in accordance with BITMAIN’s
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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/DHL/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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such Product(s) or in any other manner, and if BITMAIN at its sole discretion decides to provide this assistance, then in addition to the Return Expense, the Purchaser shall also pay BITMAIN an administrative fee in accordance with BITMAIN’s then applicable internal policy.
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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
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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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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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exclusively and fully responsible for complying with the Applicable Laws regarding repackaging the Products for the Purchaser’s redistribution needs, and shall be solely liable for any and all liabilities or costs directly incurred or incidental to such redistribution.
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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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identity information, logistics information upon the request of relevant judicial agencies, regulatory agencies or third-party payment institutions for investigation purpose. In addition, if necessary, the Purchaser shall provide further information upon BITMAIN’s request.
If to the Purchaser:
Address: One Vanderbilt Avenue, Floor 54, Suite C, New York, USA, 10017 Attn: Patrick Kelly, Co-President & COO
Phone: ***
Email: ***, with a copy to ***
If to BITMAIN:
Address: 840 New Burton Street, Suite 201, Dover, Kent, DE 19904 Attn: Alyssa. Liu
Phone: ***
Email: ***, with a copy to *** and ***
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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 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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20.1. All provisions of Clauses 5, 6, 8, 9, 10, 11, 14 and 19 shall survive the termination or completion of this Agreement.
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[The rest part of the page is intentionally left in blank]
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Signed for and on behalf of BITMAIN
BITMAIN TECHNOLOGIES DELAWARE LIMITED
Signature /s/ Ran Cheng
Title Ran Cheng, Director
Signed for and on behalf of the Purchaser
Cipher Mining Infrastructure LLC
Signature /s/ William Iwaschuk
Title William Iwaschuk, Co-President and Chief Legal Officer
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APPENDIX A
Type | Details |
Product Name | HASH Super Computing Server |
Model | T21 |
Rated hashrate per unit, T | 190.00 |
Rated power per unit, W | 3,610.00 |
J/T | 19.00 |
Contracted Hashrate, T | 7,105,240.00 |
Quantity of the Products | 37,396 |
Description | 1. 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. |
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Batch |
Model | Shipping Period | Reference Quantity | Total Rated Hashrate (T) | Purchase Unit Price(US$/T) | Corresponding Total Purchase Price(US$) |
SALE- |
|
|
|
|
|
|
1205- 2023- |
T21 |
April 2025 |
37,396 |
7,105,240.00 |
14.00 |
99,473,360.00 |
T21-1-03 |
|
|
|
|
|
|
In Total | 37,396 |
| / | 99,473,360.00 |
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Company Name: Bitmain Technologies Delaware Limited
Company Address: 840 New Burton Street, Suite 201, Dover, Delaware, DE 19904 Account Number: ***
Currency: USD
Incoming Domestic (US) Wires:
Beneficiary Bank: ***
Beneficiary Bank ABA: ***
Beneficiary Bank Address: ***
International Incoming Wires:
Receiving Bank: ***
Receiving Bank SWIFT Code: ***
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Receiving Bank Address: ***
Beneficiary Bank: ***
Beneficiary Bank ABA: ***
Beneficiary Bank Address: ***
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APPENDIX B
Payment | Payment Percentage |
Payment Date |
Down Payment |
10% | 10% of the Total Purchase Price of all batches of Products hereunder has been paid by the Purchaser through its affiliate, Cipher Mining Technologies Inc. (“CMTI”) on December 12, 2023 as “Earnest Money” for the Products, pursuant to the Letter of Intent for Bulk Purchase entered by and between BITMAIN DEVELOPMENT PTE. LTD. (“BITMAIN DEVELOPMENT”) and CMTI, executed by CMTI on December 8, 2023 and by BITMAIN DEVELOPMENT on December 12, 2023. |
Interim Payment |
40% | 40% of the Total Purchase Price of each batch of Products shall be paid at least one hundred and eighty (180) days prior to the first day of the Shipping Period of such batch of Products |
Balance Payment |
50% | 50% of the Total Purchase Price of each batch of Products shall be paid at least seven (7) days prior to the first day of the Shipping Period of such batch of Products |
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APPENDIX C
Payment | Payment Percentage | Payment Date |
Down Payment / Call Purchase Fee | 10% | 10% of the total purchase price of Forward Deliverables shall be paid by the Purchaser within seven (7) days after the execution of this Agreement |
Interim Payment | 40% | 40% of the total purchase price of Forward Deliverables shall be paid at least one hundred and eight (180) days prior to the first day of the Shipping Period of Call Purchase (as defined below) of such batch of Forward Deliverables |
Balance Payment | 50% | 50% of the Call Purchase Price of each batch of Forward Deliverables shall be paid at least seven (7) days prior to the first day of the Shipping Period of Call Purchase of such batch of Forward Deliverables |
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