Exhibit 10.2
EQUIPMENT PURCHASE AND SALE AGREEMENT
THIS EQUIPMENT PURCHASE AND SALE AGREEMENT (together with all Schedules and Exhibits hereto which are incorporated herein by reference, this “Agreement”), dated as of September 8, 2022 (the “Effective Date”), is entered into by and between CleanSpark GLP, LLC, a Georgia limited liability company, with its mailing address at 2380 Godby Road, College Park, Georgia 30349 (“Buyer”), and COSMOS INFRASTRUCTURE, LLC, a Delaware limited liability company, with an address at 2015 George Lyons Parkway, Sandersville, Georgia 31082 (“Seller”) and MAWSON INFRASTRUCTURE GROUP, INC., a Delaware corporation with its address at Level 5 97 Pacific Highway, North Sydney NSW 2060 (“MIG”).
RECITALS:
WHEREAS, CSRE Properties Sandersville, LLC, a Georgia limited liability company, CleanSpark, Inc., a Nevada corporation, both affiliates of Buyer, and Luna Squares, LLC, f/k/a Innovative Property Management, LLC, a Delaware limited liability company and an affiliate of Seller, have entered into a Purchase and Sale Agreement (“Land Purchase Agreement”) on August 31, 2022; and
WHEREAS, as part of the Land Purchase Agreement, it is contemplated that Buyer shall purchase certain of Seller’s Bitcoin mining equipment and other assets in addition to the Land Purchase Agreement on the terms and conditions of this Agreement; and
WHEREAS, Seller desires to sell such assets to Buyer on the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
description AND delivery OF ASSETS
1.1 Purchased Assets. Subject to the terms of this Agreement, Buyer agrees to purchase the assets from Seller that are listed on Schedule 1 (“Purchased Assets”).
1.3 Land Purchase Agreement. The consummation of this Agreement is subject to the execution, delivery and consummation of the transactions contemplated by the Land Purchase Agreement. This Agreement may only be terminated, if the transactions contemplated by the Land Purchase Agreement have not been consummated and the Land Purchase Agreement has been
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terminated, in which case, either party hereto, in its sole discretion, may terminate this Agreement without further liability to the other party.
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale of Assets. Subject to the terms of this Agreement, Seller agrees to sell, assign, transfer and deliver to Buyer, and Buyer agrees to purchase and accept from Seller, at the Closing (as defined in Section 3.2 below), all of Seller’s right, title and interest to the Purchased Assets.
2.4 MIG Guarantee. MIG hereby irrevocably, absolutely and unconditionally guarantees to Buyer the prompt, complete and full performance, when due, of all of Seller covenants and obligations under this Agreement. This guaranty shall be a continuing guaranty and shall remain in full force and effect with respect to MIG until the termination of the applicable agreement, representation, warranty, covenant or obligation of Seller pursuant to, and in accordance with, this Agreement. MIG acknowledges that its obligations under this 2.4 shall not be released or discharged in whole or in part by the insolvency, bankruptcy, liquidation, termination, dissolution, merger, consolidation or other business combination of Seller or MIG. The guaranty contemplated in this Section 2.4 shall apply to any obligation of Seller hereunder, regardless of whether MIG is specifically cited herein as being a party to such obligation. MIG shall be liable as principal debtor and not solely as surety with respect to the performance of the obligations guaranteed hereunder. Buyer shall not be bound to exhaust their recourse against Seller or any other Person before being entitled to payment or other recourse under the guarantee provided by MIG herein.
CONSIDERATION; Closing
3.1 Purchase Price. The purchase price (the “Purchase Price”) for the Purchase Assets shall be Nine Million, Four Hundred Eighty-Three Thousand, One Hundred Forty-Four and No/Dollars ($9,483,144.00) in cash.
3.2 Closing. The consummation of the transactions contemplated by this Agreement shall occur contemporaneously with the consummation of the transactions contemplated by the Land Purchase Agreement. Upon closing, Buyer and Seller shall execute and deliver the Bill of Sale and Buyer shall pay the Seller the Purchase Price within fifteen (15) days after Closing, via wire transfer to an account designated in writing by Seller.
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3.3 Security. Buyer hereby grants a security interest in the Purchased Assets in favor of Seller to secure the obligations of Buyer to pay the Purchase Price in full under this Agreement. Seller may, at such time as it determines appropriate, file a UCC 1 Financing Statement in such places as it determines to evidence the security interest granted by Buyer to Seller under this Agreement. Upon the occurrence of a payment default by Buyer, Seller may, in addition to any other remedies provided herein, take possession of the Purchased Assets, without liability for trespass or conversion, for itself or sell the same at public or private sale, with or without having such property at the sale, after giving Buyer reasonable notice of time and place of any public sale or of the time after which any private sale is to be made, at which sale Luna Squares or its assigns may purchase unless otherwise prohibited by law. Unless otherwise provided by law, and without intending to exclude any other manner of giving Buyer reasonable notice, the requirement of reasonable notice shall be met if such notice is given in the manner prescribed in Section at least ten (10) business days before the time of sale. The proceeds from any such disposition, less all expenses connected with the taking of possession, holding, and selling of the property (including reasonable attorneys’ fees and other expenses), shall be applied as a credit against the indebtedness secured by the security interest granted in this paragraph. Any surplus shall be paid to Buyer as otherwise required by law, and Buyer shall pay any deficiencies forthwith. Once the Purchase Price is paid in full, such security interest shall be terminated and of no further force or effect without any further authorization or approval of Seller. Seller agrees to cancel and/or withdraw all liens and encumbrances on the Purchases Assets, including any UCC 1 Financing Statements, upon the termination of the security interest, if applicable.
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller makes no representation or warranty whatsoever with respect to the Purchased Assets other than as expressly set out in this Agreement. By accepting this Agreement, Buyer acknowledges that it has not relied on any representation or warranty made by Seller, or any other person on Seller's behalf, other than as set out in this Agreement. Seller represents and warrants to Buyer as follows:
4.1 Organization and Good Standing. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller has all limited liability company power and authority to own, occupy and operate the Purchased Assets. Seller is duly qualified to do business and is in good standing in all other jurisdictions in which the ownership of the Purchased Assets make such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the consummation of the transactions contemplated by this Agreement, taken as a whole.
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For clarity, the Seller must replace a Bitmain S19pro with another Bitmain S19pro with the same Hashrate and not with a Bitmain S19, or an Avalon, Canaan, or Whatsminer.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.1 Organization and Good Standing. Buyer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Georgia.
CERTAIN COVENANTS AND UNDERSTANDINGS
6.1 Transfer Taxes. Any and all Transfer Taxes (as defined below) shall be borne by Seller. Seller shall timely and accurately file all necessary tax returns and other documentation with respect to Transfer Taxes (the “Transfer Tax Returns”) and timely pay all such Transfer Taxes. If required by applicable law, Seller will join in the execution of any Transfer Tax Return. For purposes of this Agreement, “Transfer Taxes” means all sales (including bulk sales), use, transfer,
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recording, value added, ad valorem, privilege, documentary, gross receipts, registration, conveyance, excise, license, stamp or similar Taxes and fees arising out of, in connection with or attributable to the transactions effectuated pursuant to this Agreement.
INDEMNIFICATION
7.1 Survival of Representations and Warranties. All representations, warranties, covenants and agreements set forth in this Agreement or in any other certificate or document delivered pursuant to this Agreement shall survive the Closing and for a period of one year (1) year, except for Section 4.9, which will expire at the Closing. No claim with regards to any representation, warranty, covenant or agreement set forth in or arising from this Agreement or in any other certificate or document delivered pursuant to this Agreement shall be brought or made after such one-year (1) year period.
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MISCELLANEOUS
If to Seller or MIG: COSMOS INFRASTRUCTURE, LLC
c/o Mawson Infrastructure Group, Inc.
Level 5 97 Pacific Highway
North Sydney NSW 2060
Attn: James Manning, Chief Executive Officer
Email: james@mawsoninc.com
With a copy: General Counsel
Email: legal@mawsoninc.com
If to Buyer: CleanSpark, Inc.
2370 Corporate Circle, Suite 160
Henderson, NV 89074
Attn: Legal Department
With a copy to: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, 3414 Peachtree Road, NE, Suite 1500,
Atlanta, GA 30326,
Attn: Justin Daniels, Esq.
Email: jdaniels@bakerdonelson.com.
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The above addresses may be changed by written notice to the other party in the manner provided above; however, that no notice of a change of address shall be effective until actual receipt of such notice.
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[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its duly authorized officer as of the date first above written.
SELLER: COSMOS INFRASTRUCTURE, LLC
A Delaware limited liability company
/s/ James Manning
By: James Manning
Its: CEO_____________________________
Counterpart Signature Page to
Equipment Purchase and Sale Agreement
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its duly authorized officer as of the date first above written.
BUYER: CleanSpark GLP, LLC
/s/ Zachary Bradford
By:
Its:
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its duly authorized officer as of the date first above written.
SELLER: MAWSON INFRASTRUCTURE GROUP, INC.
A Delaware limited liability company
/s/ James Manning
By: James Manning
Its: CEO
Counterpart Signature Page to
Equipment Purchase and Sale Agreement
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