Exhibit 1.1
CLEANSPARK, INC.
AMENDMENT NO. 1
TO
AT THE MARKET OFFERING AGREEMENT
March 28, 2024
H.C. Wainwright & Co., LLC
430 Park Avenue
New York, New York 10022
As Manager
Ladies and Gentlemen:
Reference is made to that certain At the Market Offering Agreement, dated as of January 5, 2024 (the “Sales Agreement”), between CleanSpark, Inc., a corporation organized under the laws of Nevada (the “Company”), and H.C. Wainwright & Co., LLC (the “Manager”) with respect to the issuance and sale by the Company through or to the Manager, as sales agent and/or principal, from time to time of shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”). All capitalized terms used in this Amendment No. 1 to the Sales Agreement (this “Amendment”) and not otherwise defined herein shall have the respective meanings assigned to such terms in the Sales Agreement. From and after the date hereof (such date, the “March 2024 ATM Prospectus Supplement Filing Date”), all references to (i) the “Agreement” in the Sales Agreement and (ii) the Sales Agreement in any document related to the transactions contemplated by the Sales Agreement shall, in each case, be to the Sales Agreement as amended by this Amendment.
On the March 2024 ATM Prospectus Supplement Filing Date, the Company has filed or will file a Prospectus Supplement relating to the offering of an additional $800,000,000 of Shares of Common Stock (the “March 2024 ATM Prospectus Supplement”), to the base prospectus, dated January 5, 2024, contained in the registration statement on Form S-3 (Registration No. 333-276409).
Pursuant to Section 14 (Amendments; Waivers) of the Sales Agreement, the Company and the Manager (collectively, the “parties hereto”) agree as follows:
| | A. | Amendments to Sales Agreement. |
| | 1. | The first sentence of Section 2 (Sale and Delivery of Shares) of the Sales Agreement is hereby amended and restated as follows, including the defined terms established therein: |
The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from time to time, during the period commencing immediately following the March 2024 ATM Prospectus Supplement Filing Date (as defined in the Amendment) and continuing through the term of this Agreement (the “Term”) and on the terms set forth herein, up to the lesser of such number of shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”), that does not exceed (a) $800,000,000 of shares of Common Stock registered on the Registration Statement pursuant to the March 2024 ATM Prospectus Supplement, or (b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock) (the lesser of (a) and (b), the “Maximum Amount”).
| | 2. | Section 2(d) of the Sales Agreement is hereby amended and restated to read in its entirety as follows: |
Maximum Number of Shares. Under no circumstances shall the Company, during the Term and after the March 2024 ATM Prospectus Supplement Filing Date, cause or request the offer or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate amount of Shares to be sold pursuant to this Agreement would exceed the lesser of (A) together with all Shares sold under this Agreement during the Term, the Maximum Amount, and (B) the amount authorized from time to time on or after the March 2024 ATM Prospectus Supplement Filing Date to be issued and sold under this Agreement by the Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer, and notified to the Manager in writing.
