UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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| Item 1.01 | Entry into a Material Definitive Agreement. |
As previously reported, on January 5, 2024, CleanSpark, Inc., a Nevada corporation (the “Company”), entered into an At the Market Offering Agreement (the “Original ATM Agreement”) with H.C. Wainwright & Co., LLC (the “Agent”), to create an at-the-market equity program (the “ATM Program”) under which the Company may, from time to time, offer and sell shares of its common stock, par value $0.001 per share (the “Common Stock”).
On March 28, 2024, the Company entered into Amendment No. 1 to the At the Market Offering Agreement with the Agent (the “ATM Agreement Amendment” and, together with the Original ATM Agreement, the “ATM Agreement”). Under the ATM Agreement, the Company may, but has no obligation to, following the filing date of the Prospectus Supplement (as defined below), issue and sell up to the lesser number of shares (the “Shares”) of the Company’s Common Stock, that does not exceed (a) $800,000,000 of shares of Common Stock (exclusive of the amount of shares of Common Stock previously sold under the Original ATM Agreement), 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 “ATM Upsized Offering”).
Any Shares sold to or through the Agent will be issued pursuant to a prospectus supplement, dated March 28, 2024 filed with the SEC (the “Prospectus Supplement”), in connection with one or more offerings of the Shares pursuant to the Prospectus Supplement. Subject to the terms and conditions of the ATM Agreement, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal law, rules and regulations to sell the Shares from time to time, based upon the Company’s instructions. Sales of the Shares, if any, under the ATM Agreement may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Act”), including sales made by means of ordinary brokers’ transactions (including directly on the Nasdaq Capital Market), at market prices or as otherwise agreed between the Company and the Agent. The Agent is not under any obligation to purchase any of the Shares on a principal basis pursuant to the ATM Agreement, except as otherwise agreed by the Agent and the Company in writing pursuant to a separate terms agreement. The Company has no obligation to sell any of the Shares and may at any time suspend offers under the ATM Agreement or terminate the ATM Agreement.
The Company has provided the Agent with customary indemnification rights, and the Agent will be entitled to a commission at a commission rate of up to 3.0% of the gross sales price of any Shares sold in the ATM Program. The ATM Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company. The ATM Agreement contains customary representations, warranties and covenants by the Company, customary conditions to the obligations of the Agent, other obligations of the parties, indemnification obligations of the Company and the Agent, including for liabilities under the Securities Act of 1933, as amended, and the Securities and Exchange Act of 1934, as amended, and termination provisions. The representations, warranties and covenants contained in the ATM Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the ATM Agreement. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the ATM Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the ATM Agreement, and this subsequent information may or may not be fully reflected in the Company’s public disclosures.
From time to time, the Agent and its affiliates have provided, and may provide in the future, various advisory, investment and commercial banking and other services to the Company in the ordinary course of business, for which it has received and may continue to receive customary fees and commissions.
The description of the ATM Agreement Amendment set forth above in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the ATM Agreement Amendment, a copy of which is attached to this Current Report on Form 8-K (“Current Report”) as Exhibit 1.1 and is incorporated by reference herein.
This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. |
Description | |
| 1.1 | Amendment No. 1 to the At the Market Offering Agreement, dated March 28, 2024, between CleanSpark, Inc. and H.C. Wainwright & Co., LLC | |
| 5.1 | Opinion of Brownstein Hyatt Farber Schreck, LLP. | |
| 23.1 | Consent of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit 5.1). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CLEANSPARK, INC. | ||||||
| Dated: March 28, 2024 | By: | |||||
| /s/ Gary Vecchiarelli | ||||||
| Gary Vecchiarelli | ||||||
| Chief Financial Officer | ||||||