DATED 2023-04-06
FUTURE
SALES AND PURCHASE AGREEMENT
BETWEEN
BITMAIN TECHNOLOGIES DELAWARE LIMITED
(“BITMAIN”)
and Cleanspark, Inc. (“PURCHASER”)
BM Ref: USDE-XS-00120230404001
THIS AGREEMENT (the “Agreement”) is made on 2023-04-06.
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:
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“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 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
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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 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.
“Quantity of the Products” means 45,000, 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 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.
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“Total Purchase Price” means $ 144,900,000.00, being the product of Purchase Unit Price multiplied by the Contracted Hashrate.
“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 or its Affiliates 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.
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 BITMAIN via FedEx/DHL/UPS/other logistics company ☑Self-pick up
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.
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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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If to the Purchaser:
Address: 2370 Corporate Circle, Suite 160, Henderson, NV 89074
Attn: Zachary Bradford
Phone: 702-989-7692
Email: zach@cleanspark.com, with a copy to Legal@cleanspark.com
If to BITMAIN:
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Address: 840 New Burton Street, Suite 201, Dover, Kent, DE 19904
Attn: alyssa.liu
Phone: +86 18959217309
Email: alyssa.liu@bitmain.com, with a copy to legal@bitmain.com and invoice@bitmain.com
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Signed for and on behalf of BITMAIN
BITMAIN TECHNOLOGIES DELAWARE LIMITED
Signature
Title
Signed for and on behalf of the Purchaser
Cleanspark, Inc.
Signature /s/ Zach Bradford
Title. Chief Executive Officer
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APPENDIX A
Type | Details |
Product Name | HASH Super Computing Server |
Model | S19 XP |
Rated hashrate per unit, T | 140.00 ± 10% |
Rated power per unit, W | 3,010.00 |
J/T | 21.5 |
Contracted Hashrate, T | 6,300,000.00 |
Quantity of the Products | 45,000 |
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. 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$) |
SALE- |
|
|
|
|
|
|
0403- |
|
|
|
|
|
|
2023- | S19 XP | 2023-08 | 25,000 | 3,500,000.00 | 23.00 | 80,500,000.00 |
S19 XP- |
|
|
|
|
|
|
01 |
|
|
|
|
|
|
SALE- |
|
|
|
|
|
|
0403- |
|
|
|
|
|
|
2023- | S19 XP | 2023-09 | 20,000 | 2,800,000.00 | 23.00 | 64,400,000.00 |
S19 XP- |
|
|
|
|
|
|
02 |
|
|
|
|
|
|
In Total | 45,000 | 6,300,000.00 | / | 144,900,000.00 |
1.3 Total Purchase Price (tax exclusive): US$ 144,900,000.00
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Company Name: Bitmain Development PTE LTD
Company address: 8 Marina Boulevard, Marina Bay Financial Centre Tower 1, Level 23 Singapore 018981
Account No.: 0105834696
Bank name: Standard Chartered Bank (SINGAPORE) Limited
Swift Code: SCBLSG22XXX
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APPENDIX B
Payment | Payment Percentage |
Payment Date |
Down Payment
|
10.00% | 10.00% of the Total Purchase Price of all batches of Products hereunder shall be paid by the Purchaser on or before April 7, 2023 ($14,490,000 USD) |
10.00% | 10.00% of the Total Purchase Price of all batches of Products hereunder shall be paid by the Purchaser on or before April 30, 2023 ($14,490,000 USD) | |
10.00% | 10.00% of the Total Purchase Price of all batches of Products hereunder shall be paid by the Purchaser on or before May 31, 2023 ($14,490,000 USD) | |
Interim Payment |
25.00% | 25.00% of the Total Purchase Price of each batch of Products shall be paid at least Two (2) months prior to the first day of the Shipping Period of such batch of Products. August Batch: $20,125,000 on or before June 30, 2023; September Batch: $16,100,000 on or before July 31, 2023. |
Balance Payment |
45.00% | The remaining amount of the Total Purchase Price of each batch of Products shall be paid upon Ready-to-Ship Notification that Products will be available for Self-pick up within seven (7) days or less. August Batch: $36,225,000; September Batch: $28,980,000 before application of $7,000,000 August Coupon ($21,980,000 after application of August Coupon). |
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