UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): September 25, 2014
INCEPTION
MINING INC.
(Exact
name of registrant as specified in its charter)
(Former
Name of Registrant)
Nevada |
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000-55219 |
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35-2302128 |
(State or Other
Jurisdiction |
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(Commission |
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(IRS Employer |
of Incorporation) |
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File Number) |
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Identification
Number) |
5320
South 900 East, Suite 260
Murray,
Utah 84107
(Address
of principal executive offices) (zip code)
801-428-9703
(Registrant’s
telephone number, including area code)
Copies
to:
Fleming
PLLC
49
Front Street, Suite 206
Rockville
Centre, New York 11570
Phone:
(516) 833-5034
Fax:
(516) 977-1209
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry Into A Material Definitive Agreement
Item 2.03 Creation of a Direct Financial Obligation
Item 3.02 Unregistered Sales of Equity Securities
On
September 24, 2014 (the “Effective Date”), Inception Mining Inc. (the “Company”) entered into a
Securities Purchase Agreement with Typenex Co-Investment, LLC (“Typenex”), for the sale of a 10% convertible
promissory note (the “Note”) in the principal amount of $115,000 (the “Closing Amount”) convertible into
shares of common stock of the Company. The Note has an original issue discount of $10,000. Typenex retained $5,000 of the Closing
Amount for due diligence and legal bills related to the transaction (the “Fee”). The financing closed on October 1,
2014 (the “Closing Date”).
In
addition, the Company issued to Typenex a warrant to purchase 105,427 shares of the Company’s common stock, subject to adjustment
in the event of a cashless exercise, as defined in the warrant. The warrant is exercisable
at $1.40 per share (the “Exercise Price”) for a period of five years on a cash or cashless basis. If the Company
at any time while the warrant is outstanding sells or otherwise disposes of any securities, including any common stock issued
under the Note, at an effective price per share less than the Exercise Price then the Exercise Price will be reduced to such price
provided that the number of shares of common stock issuable under the warrant may not exceed a number of shares equal to three
(3) times the number of shares of common stock issuable under the warrant as of the Effective Date.
The Note bears interest at
the rate of 10% per annum. All interest and principal must be repaid nine (9) months after the Closing Date (the “Maturity
Date”). The Note is convertible into common stock, at Typenex’s option, at $1.40 per share (the “Optional Conversion”).
Beginning
on the date that is six (6) months after the Closing Date and on the same day of each month thereafter until the Maturity Date,
the Company must pay to Typenex the greater of (i) $28,750, plus the sum of any accrued and unpaid interest, or (ii) the then
outstanding balance under the Note divided by the number of installment dates remaining prior to the Maturity Date. Payments of
each installment amount may be made in cash or by converting such installment amount into common stock. The conversion price for
each installment conversion will be the lesser of (i) the $1.40, and (ii) 60% (the “Conversion Factor”) of the average
of the three lowest closing bid prices in the 20 trading days immediately preceding the applicable conversion (the “Market
Price”), provided that if at any time the average of the three lowest closing bid prices in the 20 trading days immediately
preceding any date of measurement is below $0.60, then in such even the then-current Conversion Factor will be reduced to 55%
for all future conversions. Additionally, if at any time after the Effective Date, the shares of common stock in accordance with
the Note are not DTC eligible, then the then-current Conversion Factor will automatically be reduced for all future conversions
by an additional 5% for all future conversions. Typenex may, in its discretion, apply an Optional Conversion to an installment
conversion.
On
a date that is 20 trading days from each date that the Company delivers conversion shares to Typenex, there is a true-up date
in which the Company will deliver additional shares if the installment conversion price on that date is less than the installment
conversion price used in the applicable installment notice. These additional shares will be equal to the difference between the
number of shares that would be delivered to Typenex at the time of the true-up date and the amount originally delivered.
Except
with regards to securities issued under an approved stock plan of the Company, if, at any time that the Note is outstanding, the
Company sells or issues any of its securities to Typenex or a third party for a price that is less than the Optional Conversion,
then such Optional Conversion will automatically be reduced to such lower issuance price.
The
Company may prepay an outstanding balance under the Note by paying to Typenex an amount equal to the installment amount due
on such installment date. Notwithstanding the foregoing, so long as the Company has not received a Conversion Notice or an installment
notice from Typenex and no Event of Default (as defined in the Note) has occurred since the Effective Date, then the Company has
the right upon providing five trading (5) days prior written notice to Typenex to prepay the outstanding balance of the Note in
full. If the Company exercises its right to prepay the Note then the Company is required to make payment in an amount in cash
equal to 125% multiplied by the then outstanding balance of the Note.
In
the event of a default, the Note may be accelerated by Typenex. The outstanding balance is immediately due and payable at the
greater of the outstanding balance divided by the installment conversion price, or the default effect, which is calculated by
multiplying the conversion eligible outstanding balance by 15% for each major default or 5% for each minor default and then adding
the resulting product to the outstanding balance as of the date of default. In addition, an interest rate of the lesser of 22%
per annum (or the maximum rate permitted under law) will be applied to the outstanding balance. Typenex is prohibited from owning
more than 4.99% of the Company’s outstanding shares Pursuant to the Note and warrants, unless the market capitalization
of the Company’s common stock is less than $10,000,000, in which case Typenex is prohibited from owning more than 9.99%
of the Company’s outstanding shares.
The
total net proceeds the Company received from this offering was $115,000, less the Fee and the original issue discount of $10,000.
As of the date of the Note, the Company is obligated on the Note issued to Typenex in connection
with the offering. The Note is a debt obligation arising other than in the ordinary course of business, which constitutes a direct
financial obligation of the Company.
The
Company claims an exemption from the registration requirements of the Securities Act of 1933, as amended (the “Act”)
for the private placement of these securities pursuant to Section 4(2) of the Act and/or Regulation D promulgated there under
since, among other things, the transaction did not involve a public offering, Typenex is an accredited investor, Typenex
had access to information about the Company and their investment, Typenex took the securities for investment and not resale,
and the Company took appropriate measures to restrict the transfer of the securities.
Item
9.01 Financial Statements and Exhibits
Exhibit No. |
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Description of Exhibit |
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4.1 |
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Securities Purchase Agreement
by and among the Company and Typenex Co-Investment, LLC, dated Sepember 24, 2014 |
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4.2 |
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Convertible Promissory Note issued
to Typenex Co-Investment, LLC |
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4.3 |
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Warrant to Purchase Shares of Common
Stock issued to Typenex Co-Investment, LLC |
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.
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INCEPTION MINING INC. |
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Date: October 7, 2014 |
By: |
/s/ Michael Ahlin |
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Michael Ahlin |
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Chief Executive Officer |
Securities
Purchase Agreement
This
Securities Purchase Agreement (this “Agreement”),
dated as of September 24, 2014, is entered into by and between Inception Mining Inc.,
a Nevada corporation (“Company”), and Typenex Co-Investment, LLC,
a Utah limited liability company, its successors and/or assigns (“Investor”).
A.
Company and Investor are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by the rules and regulations promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “1933 Act”).
B.
Investor desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement
(i) a Convertible Promissory Note, in the form attached hereto as Exhibit A, in the original principal amount of $115,000.00
(the “Note”), convertible into shares of common stock, $0.00001 par value per share, of Company (the “Common
Stock”), upon the terms and subject to the limitations and conditions set forth in such Note, and (ii) a Warrant to
Purchase Common Stock, in the form attached hereto as Exhibit B (the “Warrant”).
C.
This Agreement, the Note, the Warrant, and all other certificates, documents, agreements, resolutions and instruments delivered
to any party under or in connection with this Agreement, as the same may be amended from time to time, are collectively referred
to herein as the “Transaction Documents”.
D.
For purposes of this Agreement: “Conversion Shares” means all shares of Common Stock issuable upon conversion
of all or any portion of the Note; “Warrant Shares” means all shares of Common Stock issuable upon the exercise
of or pursuant to the Warrant; and “Securities” means the Note, the Conversion Shares, the Warrant and the
Warrant Shares.
NOW,
THEREFORE, Company and Investor hereby agree as follows:
1.
Purchase and Sale of Securities.
1.1.
Purchase of Securities. Company shall issue and sell to Investor and Investor agrees to purchase from Company the Note
and the Warrant. In consideration thereof, Investor shall pay the Purchase Price to Company. For the avoidance of doubt, the Purchase
Price constitutes payment in full for the Warrant.
1.2.
Form of Payment. On the Closing Date, Investor shall pay the Purchase Price to Company against delivery of the Note and
the Warrant.
1.3.
Closing Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below,
the date and time of the issuance and sale of the Securities pursuant to this Agreement (the “Closing Date”)
shall be 5:00 p.m., Eastern Time on or about September 24, 2014, or such other mutually agreed upon time. The closing of the transactions
contemplated by this Agreement (the “Closing”) shall occur on the Closing Date at the offices of Investor unless
otherwise agreed upon by the parties.
1.4.
Collateral for the Note. The Note shall not be secured.
1.5.
Original Issue Discount; Transaction Expenses. The Note carries an original issue discount of $10,000.00 (the “OID”).
In addition, Company agrees to pay $5,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence,
monitoring and other transaction costs incurred in connection with the purchase and sale of the Securities (the “Transaction
Expense Amount”), all of which amount is included in the initial principal balance of this Note. The “Purchase
Price”, therefore, shall be $100,000.00, computed as follows: $115,000.00 original principal balance, less the OID,
less the Transaction Expense Amount.
2.
Investor’s Representations and Warranties. Investor represents and warrants to Company that: (i) this Agreement has
been duly and validly authorized; (ii) this Agreement constitutes a valid and binding agreement of Investor enforceable in accordance
with its terms; and (iii) Investor is an “accredited investor” as that term is defined in Rule 501(a) of Regulation
D of the 1933 Act.
3.
Representations and Warranties of Company. Company represents and warrants to Investor that: (i) Company is a corporation
duly organized, validly existing and in good standing under the laws of its state of incorporation and has the requisite corporate
power to own its properties and to carry on its business as now being conducted; (ii) Company is duly qualified as a foreign corporation
to do business and is in good standing in each jurisdiction where the nature of the business conducted or property owned by it
makes such qualification necessary; (iii) Company has registered its Common Stock under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the “1934 Act”), and is obligated to file reports pursuant to Section 13 or Section
15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and thereby, have been
duly and validly authorized by Company; (v) this Agreement, the Note, the Warrant, and the other Transaction Documents have been
duly executed and delivered by Company and constitute the valid and binding obligations of Company enforceable in accordance with
their terms, subject as to enforceability only to general principles of equity and to bankruptcy, insolvency, moratorium, and
other similar laws affecting the enforcement of creditors’ rights generally; (vi) the execution and delivery of the Transaction
Documents by Company, the issuance of Securities in accordance with the terms hereof, and the consummation by Company of the other
transactions contemplated by the Transaction Documents do not and will not conflict with or result in a breach by Company of any
of the terms or provisions of, or constitute a default under (a) Company’s formation documents or bylaws, each as currently
in effect, (b) any indenture, mortgage, deed of trust, or other material agreement or instrument to which Company is a party or
by which it or any of its properties or assets are bound, including any listing agreement for the Common Stock, or (c) to Company’s
knowledge, any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any court, United
States federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Company or
any of Company’s properties or assets; (vii) no further authorization, approval or consent of any court, governmental body,
regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender of Company is required
to be obtained by Company for the issuance of the Securities to Investor; (viii) none of Company’s filings with the SEC
contained, at the time they were filed, any untrue statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made,
not misleading; (ix) Company has filed all reports, schedules, forms, statements and other documents required to be filed by Company
with the SEC under the 1934 Act on a timely basis or has received a valid extension of such time of filing and has filed any such
report, schedule, form, statement or other document prior to the expiration of any such extension; (x) Company is not, nor has
it ever been, a “Shell Company,” as such type of “issuer” is described in Rule 144(i)(1) under the 1933
Act; (xi) Company has taken no action which would give rise to any claim by any person or entity for a brokerage commission, placement
agent or finder’s fees or similar payments by Investor relating to the Note or the transactions contemplated hereby; (xii)
except for such fees arising as a result of any agreement or arrangement entered into by Investor without the knowledge of Company
(an “Investor’s Fee”), Investor shall have no obligation with respect to such fees or with respect to
any claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may be due in connection
with the transactions contemplated hereby and Company shall indemnify and hold harmless each of Investor, Investor’s employees,
officers, directors, stockholders, managers, agents, and partners, and their respective affiliates, from and against all claims,
losses, damages, costs (including the costs of preparation and attorneys’ fees) and expenses suffered in respect of any
such claimed or existing fees (other than an Investor’s Fee, if any), and (xiii) when issued, each of the Securities (including,
without limitation, the Conversion Shares and the Warrant Shares), will be validly issued, fully paid for and non-assessable,
free and clear of all liens, claims, charges and encumbrances.
4.
Company Covenants. Until all of Company’s obligations hereunder are paid and performed in full, or within the timeframes
otherwise specifically set forth below, Company shall comply with the following covenants: (i) from the date hereof until the
date that is six (6) months after all the Conversion Shares and the Warrant Shares either have been sold by Investor, or may permanently
be sold by Investor without any restrictions pursuant to Rule 144, Company shall timely make all filings required to be made by
it under the 1933 Act, the 1934 Act, Rule 144 or any United States securities laws and regulations thereof applicable to Company
or by the rules and regulations of its principal trading market, and such filings shall conform to the requirements of applicable
laws, regulations and government agencies, and, unless such filings are publicly available on the SEC’s EDGAR system (via
the SEC’s web site at no additional charge), Company shall provide a copy thereof to Investor promptly after such filings;
(ii) so long as Investor beneficially owns any of the Securities and for at least twenty (20) Trading Days (as defined in the
Note) thereafter, Company shall file all reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of the 1934
Act, and shall take all reasonable action under its control to ensure that adequate current public information with respect to
Company, as required in accordance with Rule 144, is publicly available, and shall not terminate its status as an issuer required
to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such termination;
(iii) the Common Stock shall be listed or quoted for trading on any of (a) the NYSE Amex, (b) the New York Stock Exchange, (c)
the Nasdaq Global Market, (d) the Nasdaq Capital Market, (e) the OTC Bulletin Board, (f) the OTCQX, or (g) the OTCQB; (iv) when
issued, each of the Securities (including, without limitation, the Conversion Shares and the Warrant Shares), will be validly
issued, fully paid for and non-assessable, free and clear of all liens, claims, charges and encumbrances, and (v) Company shall
use the net proceeds received hereunder for working capital and general corporate purposes only; provided, however, Company
will not use such proceeds to pay fees payable (A) to any broker or finder relating to the offer and sale of the Securities unless
such broker, finder, or other party is a registered investment adviser or registered broker-dealer and such fees are paid in full
compliance with all applicable laws and regulations, or (B) to any other party relating to any financing transaction effected
prior to the date hereof.
5.
Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Securities
to Investor at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions:
5.1.
Investor shall have executed this Agreement and delivered the same to Company.
5.2.
Investor shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.
6.
Conditions to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Securities
at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that
these conditions are for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:
6.1.
Company shall have executed this Agreement and delivered the same to Investor.
6.2.
Company shall have delivered to Investor the duly executed Note and Warrant in accordance with Section 1.2 above.
6.3.
The Irrevocable Letter of Instructions to Transfer Agent substantially in the form attached hereto as Exhibit C shall have
been delivered to and acknowledged in writing by Company’s transfer agent (the “Transfer Agent”).
6.4.
Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto
as Exhibit D evidencing Company’s approval of the Transaction Documents.
6.5.
Company shall have delivered to Investor a fully executed Share Issuance Resolution substantially in the form attached hereto
as Exhibit E to be delivered to the Transfer Agent.
6.6.
Company shall have delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company
herein or therein.
7.
Reservation of Shares. At all times during which the Note is convertible or the Warrant is exercisable, Company will reserve
from its authorized and unissued Common Stock to provide for the issuance of Common Stock upon the full conversion of the Note
and full exercise of the Warrant. Company will at all times reserve at least (i) three (3) times the higher of (1) the Outstanding
Balance (as defined in and determined pursuant to the Note) divided by the Lender Conversion Price (as defined in and determined
pursuant to the Note), and (2) the Outstanding Balance divided by the Market Price (as defined in and determined pursuant to the
Note), plus (ii) three times the number of Warrant Shares (as determined pursuant to the Warrant) deliverable upon full
exercise of the Warrant (the “Share Reserve”), but in any event not less than 600,000 shares of Common Stock
shall be reserved at all times for such purpose (the “Transfer Agent Reserve”). Company further agrees that
it will cause the Transfer Agent to immediately add shares of Common Stock to the Transfer Agent Reserve in increments of 100,000
shares as and when requested by Investor in writing from time to time, provided that such incremental increases do not cause the
Transfer Agent Reserve to exceed the Share Reserve. In furtherance thereof, from and after the date hereof and until such time
that the Note has been paid in full and the Warrant exercised in full, Company shall require the Transfer Agent to reserve for
the purpose of issuance of Conversion Shares under the Note and Warrant Shares under the Warrant, a number of shares of Common
Stock equal to the Transfer Agent Reserve. Company shall further require the Transfer Agent to hold such shares of Common Stock
exclusively for the benefit of Investor and to issue such shares to Investor promptly upon Investor’s delivery of a conversion
notice under the Note or a Notice of Exercise under the Warrant. Finally, Company shall require the Transfer Agent to issue shares
of Common Stock pursuant to the Note and the Warrant to Investor out of its authorized and unissued shares, and not the Transfer
Agent Reserve, to the extent shares of Common Stock have been authorized, but not issued, and are not included in the Transfer
Agent Reserve. The Transfer Agent shall only issue shares out of the Transfer Agent Reserve to the extent there are no other authorized
shares available for issuance and then only with Investor’s written consent.
8.
Miscellaneous. The provisions set forth in this Section 8 shall apply to this Agreement, as well as all other Transaction
Documents as if these terms were fully set forth therein.
8.1.
Original Signature Pages. Each party agrees to deliver its original signature pages to the Transaction Documents to the
other party within five (5) Trading Days of the date hereof. Notwithstanding the foregoing, the Transaction Documents shall be
fully effective upon exchange of electronic signature pages by the parties and payment of the Purchase Price by Investor. For
the avoidance of doubt, the failure by either party to deliver its original signature pages to the other party shall not affect
in any way the validity or effectiveness of any of the Transaction Documents, provided that such failure to deliver original signatures
shall be a breach of the party’s obligations hereunder.
8.2.
Cross Default. Any Event of Default (as defined in the Note) by Company under the Note shall be deemed a default under
this Agreement, and any default by Company under this Agreement will be deemed an Event of Default under the Note.
8.3.
Governing Law; Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah
for contracts to be wholly performed in such state and without giving effect to the principles thereof regarding the conflict
of laws. Each party consents to and expressly agrees that venue for Arbitration (as defined in Exhibit F) of any dispute
arising out of or relating to any Transaction Document or the relationship of the parties or their affiliates shall be in Salt
Lake County or Utah County, Utah). Without modifying the parties obligations to resolve disputes hereunder pursuant to the Arbitration
Provisions (as defined below), for any litigation arising in connection with any of the Transaction Documents, each party hereto
hereby (a) consents to and expressly submits to the exclusive personal jurisdiction of any state or federal court sitting in Salt
Lake County, Utah, (b) expressly submits to the venue of any such court for the purposes hereof, and (c) waives any claim of improper
venue and any claim or objection that such courts are an inconvenient forum or any other claim or objection to the bringing of
any such proceeding in such jurisdictions or to any claim that such venue of the suit, action or proceeding is improper.
8.4.
Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit F) arising under this Agreement
or any other Transaction Document or other agreements between the parties and their affiliates to binding arbitration pursuant
to the arbitration provisions set forth in Exhibit F attached hereto (the “Arbitration Provisions”).
The parties hereby acknowledge and agree that the Arbitration Provisions are unconditionally binding on the parties hereto and
are severable from all other provisions of this Agreement. Any capitalized term not defined in the Arbitration Provisions shall
have the meaning set forth in this Agreement. By executing this Agreement, Company represents, warrants and covenants that Company
has reviewed the Arbitration Provisions carefully, consulted with legal counsel about such provisions (or waived its right to
do so), understands that the Arbitration Provisions are intended to allow for the expeditious and efficient resolution of any
dispute hereunder, agrees to the terms and limitations set forth in the Arbitration Provisions, and that Company will not take
a position contrary to the foregoing representations. Company acknowledges and agrees that Investor may rely upon the foregoing
representations and covenants of Company regarding the Arbitration Provisions.
8.5.
Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any arithmetic calculation
under the Transaction Documents, including without limitation, calculating the Outstanding Balance, Warrant Shares, Exercise Shares
(as defined in the Warrant), Delivery Shares (as defined in the Warrant) Lender Conversion Price, Lender Conversion Shares (as
defined in the Note) to be delivered, Installment Conversion Price (as defined in and determined pursuant to the Note), Installment
Conversion Shares (as defined in the Note) to be delivered, Market Price, Conversion Shares, or the VWAP (as defined in the Note)
(collectively, “Calculations”), Company or Investor (as the case may be) shall submit the disputed determinations
or arithmetic calculations (as the case may be) via facsimile or email with confirmation of receipt (a) within two (2) Trading
Days after receipt of the applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (b) if
no notice gave rise to such dispute, at any time after Investor learned of the circumstances giving rise to such dispute. If Investor
and Company are unable to agree upon such determination or calculation within two (2) Trading Days of such disputed determination
or arithmetic calculation (as the case may be) being submitted to Company or Investor (as the case may be), then Investor shall,
within two (2) Trading Days, submit via facsimile the disputed Calculation to an independent, reputable investment bank or accounting
firm selected by Investor. Company shall cause the investment bank or accounting firm to perform the determinations or calculations
(as the case may be) and notify Company and Investor of the results no later than ten (10) Trading Days from the time it receives
such disputed determinations or calculations (as the case may be). Such investment bank’s or accounting firm’s determination
of the disputed Calculation shall be binding upon all parties absent demonstrable error. The investment banker’s or accounting
firm’s fee for performing such Calculation shall be paid by the incorrect party, or if both parties are incorrect, by the
party whose Calculation is furthest from the correct Calculation as determined by the investment banker or accounting firm. In
the event Company is the losing party, no extension of the Delivery Date shall be granted and Company shall incur all effects
for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents.
8.6.
Counterparts. Each Transaction Document may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another
party’s executed counterpart of a Transaction Document (or such party’s signature page thereof) will be deemed to
be an executed original thereof.
8.7.
Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
8.8.
Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
8.9.
Entire Agreement; Amendments. This Agreement and the instruments and exhibits referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein,
neither Company nor Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the parties hereto.
8.10.
Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall
be deemed effectively given on the earliest of: (a) the date delivered, if delivered by personal delivery as against written receipt
therefor or by email to an executive officer, or by facsimile (with successful transmission confirmation), (b) the earlier of
the date delivered or the third Trading Day after deposit, postage prepaid, in the United States Postal Service by certified mail,
or (c) the earlier of the date delivered or the third Trading Day after mailing by express courier, with delivery costs and fees
prepaid, in each case, addressed to each of the other parties thereunto entitled at the following addresses (or at such other
addresses as such party may designate by five (5) calendar days’ advance written notice similarly given to each of the other
parties hereto):
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If
to Company: |
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Inception
Mining Inc. |
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Attn:
Michael Ahlin |
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5320
South 900 East, Suite 260 |
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Salt Lake City,
Utah 84107 |
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If
to Investor: |
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Typenex
Co-Investment, LLC |
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Attn:
John Fife |
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303
East Wacker Drive, Suite 1200 |
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Chicago,
Illinois 60601 |
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With
a copy to (which copy shall not constitute notice): |
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Hansen
Black Anderson Ashcraft PLLC |
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Attn:
Jonathan K. Hansen |
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3051
West Maple Loop, Suite 325 |
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Lehi,
Utah 84043 |
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8.11.
Successors and Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be
performed by Investor hereunder may be assigned by Investor to a third party, including its financing sources, in whole or in
part, without the need to obtain Company’s consent thereto. Company may not assign its rights or obligations under this
Agreement or delegate its duties hereunder without the prior written consent of Investor.
8.12.
Survival. The representations and warranties of Company and the agreements and covenants set forth in this Agreement shall
survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of Investor. Company agrees
to indemnify and hold harmless Investor and all its officers, directors, employees, attorneys, and agents for loss or damage arising
as a result of or related to any breach or alleged breach by Company of any of its representations, warranties and covenants set
forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they
are incurred.
8.13.
Publicity. Company and Investor shall have the right to review a reasonable period of time before issuance of any press
releases by the other party with respect to the transactions contemplated hereby.
8.14.
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby.
8.15.
Investor’s Rights and Remedies Cumulative; Liquidated Damages. All rights, remedies, and powers conferred in this
Agreement and the Transaction Documents are cumulative and not exclusive of any other rights or remedies, and shall be in addition
to every other right, power, and remedy that Investor may have, whether specifically granted in this Agreement or any other Transaction
Document, or existing at law, in equity, or by statute, and any and all such rights and remedies may be exercised from time to
time and as often and in such order as Investor may deem expedient. The parties acknowledge and agree that upon Company’s
failure to comply with the provisions of the Transaction Documents, Investor’s damages would be uncertain and difficult
(if not impossible) to accurately estimate because of the parties’ inability to predict future interest rates and future
share prices, Investor’s increased risk, and the uncertainty of the availability of a suitable substitute investment opportunity
for Investor, among other reasons. Accordingly, any fees, charges, and default interest due under the Note, the Warrant, and the
other Transaction Documents are intended by the parties to be, and shall be deemed, liquidated damages (under Company’s
and Investor’s expectations that any such liquidated damages will tack back to the Closing Date for purposes of determining
the holding period under Rule 144). The parties agree that such liquidated damages are a reasonable estimate of Investor’s
actual damages and not a penalty, and shall not be deemed in any way to limit any other right or remedy Investor may have hereunder,
at law or in equity. The parties acknowledge and agree that under the circumstances existing at the time this Agreement is entered
into, such liquidated damages are fair and reasonable and are not penalties. All fees, charges, and default interest provided
for in the Transaction Documents are agreed to by the parties to be based upon the obligations and the risks assumed by the parties
as of the Closing Date and are consistent with investments of this type. The liquidated damages provisions of the Transaction
Documents shall not limit or preclude a party from pursuing any other remedy available at law or in equity; provided, however,
that the liquidated damages provided for in the Transaction Documents are intended to be in lieu of actual damages.
8.16.
Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement or the other Transaction Documents,
if at any time Investor shall or would be issued shares of Common Stock under any of the Transaction Documents, but such issuance
would cause Investor (together with its affiliates) to beneficially own a number of shares exceeding the Maximum Percentage (as
defined in the Note), then Company must not issue to Investor the shares that would cause Investor to exceed the Maximum Percentage.
The shares of Common Stock issuable to Investor that would cause the Maximum Percentage to be exceeded are referred to herein
as the “Ownership Limitation Shares”. Company will reserve the Ownership Limitation Shares for the exclusive
benefit of Investor. From time to time, Investor may notify Company in writing of the number of the Ownership Limitation Shares
that may be issued to Investor without causing Investor to exceed the Maximum Percentage. Upon receipt of such notice, Company
shall be unconditionally obligated to immediately issue such designated shares to Investor, with a corresponding reduction in
the number of the Ownership Limitation Shares. For purposes of this Section, beneficial ownership of Common Stock will be determined
under Section 13(d) of the 1934 Act.
8.17.
Attorneys’ Fees and Cost of Collection. In the event of any arbitration or action at law or in equity to enforce
or interpret the terms of this Agreement or any of the other Transaction Documents, the parties agree that the party who is awarded
the most money shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of
the full amount of the attorneys’ fees, deposition costs, and expenses paid by such prevailing party in connection with
arbitration or litigation without reduction or apportionment based upon the individual claims or defenses giving rise to the fees
and expenses. Nothing herein shall restrict or impair an arbitrator’s or a court’s power to award fees and expenses
for frivolous or bad faith pleading. If (a) the Note or Warrant is placed in the hands of an attorney for collection or enforcement
prior to commencing arbitration or legal proceedings, or is collected or enforced through any arbitration or legal proceeding,
or Investor otherwise takes action to collect amounts due under the Note or to enforce the provisions of the Note or the Warrant;
or (b) there occurs any bankruptcy, reorganization, receivership of Company or other proceedings affecting Company’s creditors’
rights and involving a claim under the Note or the Warrant; then Company shall pay the costs incurred by Investor for such collection,
enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without
limitation, attorneys’ fees, expenses, deposition costs, and disbursements.
8.18.
Waiver. No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by
the party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any
other provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in
writing.
8.19.
Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND
THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE
PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW
OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY
WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.
8.20.
Time of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement and
the other Transaction Documents.
[Remainder
of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF, the undersigned Investor and Company have caused this Agreement to be duly executed as of the date first above
written.
SUBSCRIPTION
AMOUNT: |
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Principal
Amount of Note: |
$115,000.00 |
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Purchase
Price: |
$100,000.00 |
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INVESTOR: |
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Typenex
Co-Investment, LLC |
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By: |
Red Cliffs Investments, Inc., its Manager |
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By: |
/s/
John M. Fife |
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John
M. Fife, President |
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COMPANY: |
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Inception
Mining Inc. |
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By: |
/s/ Michael
Ahlin |
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Printed
Name: Michael Ahlin |
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Title: |
CEO |
ATTACHED
EXHIBITS:
Exhibit
A |
Note |
Exhibit B |
Warrant |
Exhibit C |
Irrevocable Transfer
Agent Instructions |
Exhibit D |
Secretary’s
Certificate |
Exhibit E |
Share Issuance
Resolution |
Exhibit F |
Arbitration Provisions |
Exhibit
F
ARBITRATION
PROVISIONS
1.
Dispute Resolution. For purposes of this Exhibit F, the term “Claims” means any disputes, claims,
demands, causes of action, liabilities, damages, losses, or controversies whatsoever arising from related to or connected with
the transactions contemplated in the Transaction Documents and any communications between the parties related thereto, including
without limitation any claims of mutual mistake, mistake, fraud, misrepresentation, failure of formation, failure of consideration,
promissory estoppel, unconscionability, failure of condition precedent, rescission, and any statutory claims, tort claims, contract
claims, or claims to void, invalidate or terminate the Agreement or any of the other Transaction Documents. The term “Claims”
specifically excludes a dispute over Calculations (as defined in the Agreement). The parties hereby agree that the arbitration
provisions set forth in this Exhibit F (“Arbitration Provisions”) are binding on the parties hereto
and are severable from all other provisions in the Transaction Documents. As a result, any attempt to rescind the Agreement or
declare the Agreement or any other Transaction Document invalid or unenforceable for any reason is subject to these Arbitration
Provisions. These Arbitration Provisions shall also survive any termination or expiration of the Agreement.
2.
Arbitration. Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”)
to be conducted in Salt Lake County, Utah or Utah County, Utah and pursuant to the terms set forth in these Arbitration Provisions.
The parties agree that the award of the arbitrator shall be final and binding upon the parties; shall be the sole and exclusive
remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator; and shall
promptly be payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Any costs
or fees, including without limitation attorneys’ fees, incident to enforcing the arbitrator’s award shall, to the
maximum extent permitted by law, be charged against the party resisting such enforcement. The award shall include Default Interest
(as defined in the Note) both before and after the award. Judgment upon the award of the arbitrator will be entered and enforced
by a state court sitting in Salt Lake County, Utah. The parties hereby incorporate herein the provisions and procedures set forth
in the Utah Uniform Arbitration Act, U.C.A. § 78B-11-101 et seq. (as amended or superseded from time to time, the
“Arbitration Act”). Pursuant to Section 78B-11-105 of the Arbitration Act, in the event of conflict between
the terms of these Arbitration Provisions and the provisions of the Arbitration Act, the terms of these Arbitration Provisions
shall control.
3.
Arbitration Proceedings. Arbitration between the parties will be subject to the following procedures:
3.1
Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate Arbitration by giving written notice
to the other party (“Arbitration Notice”) in the same manner that notice is permitted under Section 8.10 of
the Agreement; provided, however, that the Arbitration Notice may not be given by email or fax. Arbitration will be deemed
initiated as of the date that the Arbitration Notice is deemed delivered under Section 8.10 of the Agreement (the “Service
Date”). After the Service Date, information may be delivered, and notices may be given, by email or fax pursuant to
Section 8.10 of the Agreement or any other method permitted thereunder. The Arbitration Notice must describe the nature of the
controversy, the remedies sought, and the election to commence Arbitration proceedings. All Claims in the Arbitration Notice must
be pleaded consistent with the Utah Rules of Civil Procedure.
3.2
Within ten (10) calendar days after the Service Date, Investor shall select and submit to Company the names of three arbitrators
that are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such
three designated persons hereunder are referred to herein as the “Proposed Arbitrators”). For the avoidance
of doubt, each Proposed Arbitrator must be qualified as a “neutral” with Utah ADR Services. Within ten (10) calendar
days after Investor has submitted to Company the names of the Proposed Arbitrators, Company must select, by written notice to
Investor, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions. If
Company fails to select one of the Proposed Arbitrators in writing within such 10-day period, then Investor may select the arbitrator
from the Proposed Arbitrators by providing written notice of such selection to Company. If Investor fails to identify the Proposed
Arbitrators within the time period required above, then Company may at any time prior to Investor designating the Proposed Arbitrators,
select the names of three arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Service
by written notice to Investor. Investor may then, within ten (10) calendar days after Company has submitted notice of its selected
arbitrators to Investor, select, by written notice to Company, one (1) of the selected arbitrators to act as the arbitrator for
the parties under these Arbitration Provisions. If Investor fails to select in writing and within such 10-day period one of the
three arbitrators selected by Company, then Company may select the arbitrator from its three previously selected arbitrators by
providing written notice of such selection to Investor. Subject to Paragraph 3.12 below, the cost of the arbitrator must be paid
equally by both parties; provided, however, that if one party refuses or fails to pay its portion of the arbitrator fee,
then the other party can advance such unpaid amount (subject to the accrual of Default Interest thereupon), with such amount added
to or subtracted from, as applicable, the award granted by the arbitrator. If Utah ADR Services ceases to exist or to provide
a list of neutrals, then the arbitrator shall be selected under the then prevailing rules of the American Arbitration Association.
The date that the selected arbitrator agrees in writing to serve as the arbitrator hereunder is referred to herein as the “Arbitration
Commencement Date”.
Arbitration Provision, Page 1 |
3.3
An answer and any counterclaims to the Arbitration Notice, which must be pleaded consistent with the Utah Rules of Civil Procedure,
shall be required to be delivered to the other party within twenty (20) calendar days after the Service Date. Upon request, the
arbitrator is hereby instructed to render a default award, consistent with the relief requested in the Arbitration Notice, against
a party that fails to submit an answer within such time period.
3.4
The party that delivers the Arbitration Notice to the other party shall have the option to also commence legal proceedings with
any state court sitting in Salt Lake County, Utah (“Litigation Proceedings”), subject to the following: (i)
the complaint in the Litigation Proceedings is to be substantially similar to the claims set forth in the Arbitration Notice,
provided that an additional cause of action to compel arbitration will also be included therein, (ii) so long as the other party
files an answer to the complaint in the Litigation Proceedings and an answer to the Arbitration Notice, the Litigation Proceedings
will be stayed pending an award of the arbitrator hereunder, (iii) if the other party fails to file an answer in the Litigation
Proceedings or an answer in the Arbitration Proceedings, then the party initiating Arbitration shall be entitled to a default
judgment consistent with the relief requested, to be entered in the Litigation Proceedings, and (iv) any legal or procedural issue
arising under the Arbitration Act that requires a decision of a court of competent jurisdiction may be determined in the Litigation
Proceedings. Any award of the arbitrator may be entered in such Litigation Proceedings pursuant to the Arbitration Act.
3.5
Pursuant to Section 118(8) of the Arbitration Act, the parties agree that discovery shall be conducted in accordance with the
Utah Rules of Civil Procedure; provided, however, that incorporation of such rules will in no event supersede the Arbitration
Provisions set forth herein, including without limitation the time limitation set forth in Paragraph 3.9 below, and the following:
(a)
Discovery will only be allowed if the likely benefits of the proposed discovery outweigh the burden or expense, and the discovery
sought is likely to reveal information that will satisfy a specific element of a claim or defense already pleaded in the Arbitration.
The party seeking discovery shall always have the burden of showing that all of the standards and limitations set forth in these
Arbitration Provisions are satisfied. The scope of discovery in the Arbitration proceedings shall also be limited as follows:
(i)
To facts directly connected with the transactions contemplated by the Agreement.
(ii)
To facts and information that cannot be obtained from another source that is more convenient, less burdensome or less expensive.
(c)
No party shall be allowed (a) more than fifteen (15) interrogatories (including discrete subparts), (b) more than fifteen (15)
requests for admission (including discrete subparts), (c) more than ten (10) document requests (including discrete subparts),
or (d) more than three depositions (excluding expert depositions) for a maximum of seven (7) hours per deposition.
3.6
Any party submitting any written discovery requests, including interrogatories, requests for production, subpoenas to a party
or a third party, or requests for admissions, must prepay the estimated attorneys’ fees and costs, as determined by the
arbitrator, before the responding party has any obligation to produce or respond.
(a)
All discovery requests must be submitted in writing to the arbitrator and the other party before issuing or serving such discovery
requests. The party issuing the written discovery requests must include with such discovery requests a detailed explanation of
how the proposed discovery requests satisfy the requirements of these Arbitration Provisions and the Utah Rules of Civil Procedure.
Any party will then be allowed, within ten (10) calendar days of receiving the proposed discovery requests, to submit to the arbitrator
an estimate of the attorneys’ fees and costs associated with responding to such written discovery requests and a written
challenge to each applicable discovery request. After receipt of an estimate of attorneys’ fees and costs and/or challenge(s)
to one or more discovery requests, the arbitrator will make a finding as to the likely attorneys’ fees and costs associated
with responding to the discovery requests and issue an order that (A) requires the requesting party to prepay the attorneys’
fees and costs associated with responding to the discovery requests, and (B) requires the responding party to respond to the discovery
requests as limited by the arbitrator within a certain period of time after receiving payment from the requesting party. If a
party entitled to submit an estimate of attorneys’ fees and costs and/or a challenge to discovery requests fails to do so
within such 10-day period, the arbitrator will make a finding that (A) there are no attorneys’ fees or costs associated
with responding to such discovery requests, and (B) the responding party must respond to such discovery requests (as may be limited
by the arbitrator) within a certain period of time as determined by the arbitrator.
Arbitration Provision, Page 2 |
(b)
In order to allow a written discovery request, the arbitrator must find that the discovery request satisfies the standards set
forth in these Arbitration Provisions and the Utah Rules of Civil Procedure. The arbitrator must strictly enforce these standards.
If a discovery request does not satisfy any of the standards set forth in these Arbitration Provisions or the Utah Rules of Civil
Procedure, the arbitrator may modify such discovery request to satisfy the applicable standards, or strike such discovery request
in whole or in part.
(c)
Discovery deadlines will be set forth in a scheduling order issued by the arbitrator. The parties hereby authorize and direct
the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’ intent for the arbitration
proceedings to be efficient and expeditious.
3.7
Each party may submit expert reports (and rebuttals thereto), provided that such reports must be submitted by the deadlines established
by the arbitrator. Expert reports must contain the following: (a) a complete statement of all opinions the expert will offer at
trial and the basis and reasons for them; (b) the expert’s name and qualifications, including a list of all publications
within the preceding 10 years, and a list of any other cases in which the expert has testified at trial or in a deposition or
prepared a report within the preceding 10 years; and (c) the compensation to be paid for the expert’s study and testimony.
The parties are entitled to depose any other party’s expert witness one time for no more than 4 hours. An expert may not
testify in a party’s case-in-chief concerning any matter not fairly disclosed in the expert report.
3.8
All information disclosed by either party during the Arbitration process (including without limitation information disclosed during
the discovery process) shall be considered confidential in nature. Each party agrees not to disclose any confidential information
received from the other party during the discovery process unless (i) prior to or after the time of disclosure such information
becomes public knowledge or part of the public domain, not as a result of any inaction or action of the receiving party, (ii)
such information is required by a court order, subpoena or similar legal duress to be disclosed if such receiving party has notified
the other party thereof in writing and given it a reasonable opportunity to obtain a protective order from a court of competent
jurisdiction prior to disclosure; or (iii) disclosed to the receiving party’s agents, representatives and legal counsel
on a need to know basis who each agree in writing not to disclose such information to any third party. Pursuant to Section 118(5)
of the Arbitration Act, the arbitrator is hereby authorized and directed to issue a protective order to prevent the disclosure
of privileged information and confidential information upon the written request of either party.
3.9
The parties hereby authorize and direct the arbitrator to take such actions and make such rulings as may be necessary to carry
out the parties’ intent for the arbitration proceedings to be efficient and expeditious. Pursuant to Section 120 of the
Arbitration Act, the parties hereby agree that an award of the arbitrator must be made within 150 days after the Arbitration Commencement
Date. The arbitrator is hereby authorized and directed to hold a scheduling conference within ten (10) calendar days after the
Arbitration Commencement Date in order to establish a scheduling order with various binding deadlines for discovery, expert testimony,
and the submission of documents by the parties to enable the arbitrator to render a decision prior to the end of such 150-day
period. The Utah Rules of Evidence will apply to any final hearing before the arbitrator.
Arbitration Provision, Page 3 |
3.10
The arbitrator shall have the right to award or include in the arbitrator’s award any relief which the arbitrator deems
proper under the circumstances, including, without limitation, specific performance and injunctive relief, provided that the arbitrator
may not award exemplary or punitive damages.
3.11
If any part of these Arbitration Provisions is found to violate applicable law or to be illegal, then such provision shall be
modified to the minimum extent necessary to make such provision enforceable under applicable law.
3.12
The arbitrator is hereby directed to require the losing party to (i) pay the full amount of the costs and fees of the arbitrator,
and (ii) reimburse the prevailing party the reasonable attorneys’ fees, arbitrator costs, deposition costs, and other discovery
costs incurred by the prevailing party.
[Remainder
of page intentionally left blank]
Arbitration Provision, Page 4 |
CONVERTIBLE
PROMISSORY NOTE
Effective Date: September 24, 2014 |
U.S. $115,000.00 |
FOR
VALUE RECEIVED, Inception Mining Inc., a Nevada corporation (“Borrower”),
promises to pay to Typenex Co-Investment, LLC, a Utah limited liability company,
or its successors or assigns (“Lender”), $115,000.00 and any interest, fees, charges, and late fees on the
date that is nine (9) months after the Purchase Price Date (as defined below) (the “Maturity Date”) in accordance
with the terms set forth herein and to pay interest on the Outstanding Balance (as defined below) at the rate of ten percent (10%)
per annum from the Purchase Price Date until the same is paid in full. This Convertible Promissory Note (this “Note”)
is issued and made effective as of September 24, 2014 (the “Effective Date”). For purposes hereof, the “Outstanding
Balance” of this Note means, as of any date of determination, the Purchase Price (as defined below), as reduced or increased,
as the case may be, pursuant to the terms hereof for redemption, conversion, offset, or otherwise, plus any original issue discount
(“OID”), the Transaction Expense Amount (as defined below), accrued but unpaid interest, collection and enforcements
costs (including attorneys’ fees) incurred by Lender, transfer, stamp, issuance and similar taxes and fees related to Conversions
(as defined below), and any other fees or charges (including without limitation late charges) incurred under this Note. This Note
is issued pursuant to that certain Securities Purchase Agreement dated September 24, 2014, as the same may be amended from time
to time (the “Purchase Agreement”), by and between Borrower and Lender. All interest calculations hereunder
shall be computed on the basis of a 360-day year comprised of twelve (12) thirty (30) day months, shall compound daily and shall
be payable in accordance with the terms of this Note. Certain capitalized terms used herein but not otherwise defined shall have
the meaning ascribed thereto in the Purchase Agreement. Certain other capitalized terms used herein are defined in Attachment
1 attached hereto and incorporated herein by this reference.
This
Note carries an OID of $10,000.00. In addition, Borrower agrees to pay $5,000.00 to Lender to cover Lender’s legal fees,
accounting costs, due diligence, monitoring and other transaction costs incurred in connection with the purchase and sale of this
Note (the “Transaction Expense Amount”), all of which amount is included in the initial principal balance of
this Note. The purchase price for this Note and the Warrant (as defined in the Purchase Agreement) shall be $100,000.00 (the “Purchase
Price”), computed as follows: $115,000.00 original principal balance, less the OID, less the Transaction Expense Amount.
The Purchase Price shall be payable by Lender by wire transfer of immediately available funds. For purposes hereof, the term “Purchase
Price Date” means the date the Purchase Price is delivered by Lender to Borrower.
1.
Payment; Prepayment. Provided there is an Outstanding Balance, on each Installment Date (as defined below), Borrower shall
pay to Lender an amount equal to the Installment Amount (as defined below) due on such Installment Date in accordance with Section
8. All payments owing hereunder shall be in lawful money of the United States of America or Conversion Shares (as defined below),
as provided for herein, and delivered to Lender at the address furnished to Borrower for that purpose. All payments shall be applied
first to (a) costs of collection, if any, then to (b) fees and charges, if any, then to (c) accrued and unpaid interest, and thereafter,
to (d) principal. Notwithstanding the foregoing, so long as Borrower has not received a Lender Conversion Notice (as defined below)
or an Installment Notice (as defined below) from Lender where the applicable Conversion Shares have not yet been delivered and
so long as no Event of Default has occurred since the Effective Date (whether declared by Lender or undeclared), then Borrower
shall have the right, exercisable on not less than five (5) Trading Days prior written notice to Lender to prepay the Outstanding
Balance of this Note, in full, in accordance with this Section 1. Any notice of prepayment hereunder (an “Optional Prepayment
Notice”) shall be delivered to Lender at its registered address and shall state: (y) that Borrower is exercising its
right to prepay this Note, and (z) the date of prepayment, which shall be not less than five (5) Trading Days from the date of
the Optional Prepayment Notice. On the date fixed for prepayment (the “Optional Prepayment Date”), Borrower
shall make payment of the Optional Prepayment Amount (as defined below) to or upon the order of Lender as may be specified by
Lender in writing to Borrower. If Borrower exercises its right to prepay this Note, Borrower shall make payment to Lender of an
amount in cash (the “Optional Prepayment Amount”) equal to 125% multiplied by the then Outstanding Balance
of this Note. In the event Borrower delivers the Optional Prepayment Amount to Lender prior to the Optional Prepayment Date or
without delivering an Optional Prepayment Notice to Lender as set forth herein without Lender’s prior written consent, the
Optional Prepayment Amount shall not be deemed to have been paid to Lender until the Optional Prepayment Date. Moreover, in such
event the Optional Prepayment Liquidated Damages Amount will automatically be added to the Outstanding Balance of this Note on
the day Borrower delivers the Optional Prepayment Amount to Lender. In the event Borrower delivers the Optional Prepayment Amount
without an Optional Prepayment Notice, then the Optional Prepayment Date will be deemed to be the date that is five (5) Trading
Days from the date that the Optional Prepayment Amount was delivered to Lender. In addition, if Borrower delivers an Optional
Prepayment Notice and fails to pay the Optional Prepayment Amount due to Lender within two (2) Trading Days following the Optional
Prepayment Date, Borrower shall forever forfeit its right to prepay this Note.
2.
Security. This Note is unsecured.
3.
Lender Optional Conversion.
3.1.
Lender Conversion Price. Subject to adjustment as set forth in this Note, the conversion price for each Lender Conversion
(as defined below) shall be $1.40 (the “Lender Conversion Price”).
3.2.
Lender Conversions. Lender has the right at any time after the Purchase Price Date until the Outstanding Balance has been
paid in full, including without limitation (i) until any Optional Prepayment Date (even if Lender has received an Optional Prepayment
Notice) or at any time thereafter with respect to any amount that is not prepaid, and (ii) during or after any Fundamental Default
Measuring Period, at its election, to convert (each instance of conversion is referred to herein as a “Lender Conversion”)
all or any part of the Outstanding Balance into shares (“Lender Conversion Shares”) of fully paid and
non-assessable common stock, $0.00001 par value per share (“Common Stock”), of Borrower as per the following
conversion formula: the number of Lender Conversion Shares equals the amount being converted (the “Conversion Amount”)
divided by the Lender Conversion Price. Conversion notices in the form attached hereto as Exhibit A (each, a “Lender
Conversion Notice”) may be effectively delivered to Borrower by any method of Lender’s choice (including but not
limited to facsimile, email, mail, overnight courier, or personal delivery), and all Lender Conversions shall be cashless and
not require further payment from Lender. Borrower shall deliver the Lender Conversion Shares from any Lender Conversion to Lender
in accordance with Section 9 below within three (3) Trading Days of Lender’s delivery of the Lender Conversion Notice to
Borrower.
3.3.
Application to Installments. Notwithstanding anything to the contrary herein, including without limitation Section 8 hereof,
Lender may, in its sole discretion, apply all or any portion of any Lender Conversion toward any Installment Conversion (as defined
below), even if such Installment Conversion is pending, as determined in Lender’s sole discretion, by delivering written
notice of such election (which notice may be included as part of the applicable Lender Conversion Notice) to Borrower at any date
on or prior to the applicable Installment Date. In such event, Borrower may not elect to allocate such portion of the Installment
Amount being paid pursuant to this Section 3.3 in the manner prescribed in Section 8.3; rather, Borrower must reduce the applicable
Installment Amount by the Conversion Amount described in this Section 3.3.
4.
Defaults and Remedies.
4.1.
Defaults. The following are events of default under this Note (each, an “Event of Default”): (i) Borrower
shall fail to pay any principal, interest, fees, charges, or any other amount when due and payable (or payable by Conversion)
hereunder; or (ii) Borrower shall fail to deliver any Lender Conversion Shares in accordance with the terms hereof; or (iii) Borrower
shall fail to deliver any Installment Conversion Shares (as defined below) or True-Up Shares (as defined below) in accordance
with the terms hereof; or (iv) a receiver, trustee or other similar official shall be appointed over Borrower or a material part
of its assets and such appointment shall remain uncontested for twenty (20) days or shall not be dismissed or discharged within
sixty (60) days; or (v) Borrower shall become insolvent or generally fails to pay, or admits in writing its inability to pay,
its debts as they become due, subject to applicable grace periods, if any; or (vi) Borrower shall make a general assignment for
the benefit of creditors; or (vii) Borrower shall file a petition for relief under any bankruptcy, insolvency or similar law (domestic
or foreign); or (viii) an involuntary proceeding shall be commenced or filed against Borrower; or (ix) Borrower shall default
or otherwise fail to observe or perform any covenant, obligation, condition or agreement of Borrower contained herein or in any
other Transaction Document, other than those specifically set forth in this Section 4.1; or (x) Borrower shall become delinquent
in its filing requirements as a fully-reporting issuer registered with the SEC or shall fail to timely file all required quarterly
and annual reports and any other filings that are necessary to enable Lender to sell Conversion Shares or True-Up Shares pursuant
to Rule 144; or (xi) any representation, warranty or other statement made or furnished by or on behalf of Borrower to Lender herein,
in any Transaction Document, or otherwise in connection with the issuance of this Note shall be false, incorrect, incomplete or
misleading in any material respect when made or furnished; or (xii) the occurrence of a Fundamental Transaction without Lender’s
prior written consent; or (xiii) Borrower shall fail to maintain the Share Reserve as required under the Purchase Agreement; or
(xiv) Borrower effectuates a reverse split of its Common Stock without twenty (20) Trading Days prior written notice to Borrower;
or (xv) any money judgment, writ or similar process shall be entered or filed against Borrower or any subsidiary of Borrower or
any of its property or other assets for more than $100,000, and shall remain unvacated, unbonded or unstayed for a period of twenty
(20) calendar days unless otherwise consented to by Lender; or (xvi) Borrower shall fail to deliver to Lender original signature
pages to all Transaction Documents within five (5) Trading Days of the Purchase Price Date; or (xvii) Borrower’s Common
Stock is not DTC Eligible.
4.2.
Remedies. Upon the occurrence of any Event of Default, Borrower shall within one (1) Trading Day deliver written notice
thereof via facsimile, email or reputable overnight courier (with next day delivery specified) (an “Event of Default
Notice”) to Lender. At any time and from time to time after the earlier of Lender’s receipt of an Event of Default
Notice and Lender becoming aware of the occurrence of any Event of Default, Lender may accelerate this Note by written notice
to Borrower, with the Outstanding Balance becoming immediately due and payable in cash at the Mandatory Default Amount (as defined
hereafter). Notwithstanding the foregoing, at any time following the occurrence of any Event of Default, Lender may, at its option,
elect to increase the Outstanding Balance by applying the Default Effect (as defined below) (subject to the limitation set forth
below) via written notice to Borrower without accelerating the Outstanding Balance, in which event the Outstanding Balance shall
be increased as of the date of the occurrence of the applicable Event of Default pursuant to the Default Effect, but the Outstanding
Balance shall not be immediately due and payable unless so declared by Lender (for the avoidance of doubt, if Lender elects to
apply the Default Effect pursuant to this sentence, it shall reserve the right to declare the Outstanding Balance immediately
due and payable at any time and no such election by Lender shall be deemed to be a waiver of its right to declare the Outstanding
Balance immediately due and payable as set forth herein unless otherwise agreed to by Lender in writing). For purposes hereof,
the “Default Effect” is calculated by multiplying the Outstanding Balance as of the date the applicable Event
of Default occurred by (i) 15% for each occurrence of any Major Default, or (ii) 5% for each occurrence of any Minor Default,
and then adding the resulting product to the Outstanding Balance as of the date the applicable Event of Default occurred, with
the sum of the foregoing then becoming the Outstanding Balance under this Note as of the date the applicable Event of Default
occurred; provided that the Default Effect may only be applied three (3) times hereunder with respect to Major Defaults and three
(3) times hereunder with respect to Minor Defaults; and provided further that the Default Effect shall not apply to any Event
of Default pursuant to Section 4.1(ii) hereof. Notwithstanding the foregoing, upon the occurrence of any Event of Default described
in clauses (iv), (v), (vi), (vii) or (viii) of Section 4.1, the Outstanding Balance as of the date of acceleration shall become
immediately and automatically due and payable in cash at the Mandatory Default Amount, without any written notice required by
Lender. The “Mandatory Default Amount” means the greater of (i) the Outstanding Balance divided by the Installment
Conversion Price (as defined below) on the date the Mandatory Default Amount is demanded, multiplied by the volume weighted average
price (the “VWAP”) on the date the Mandatory Default Amount is demanded, or (ii) the Default Effect. At any
time following the occurrence of any Event of Default, upon written notice given by Lender to Borrower, interest shall accrue
on the Outstanding Balance beginning on the date the applicable Event of Default occurred at an interest rate equal to the lesser
of 22% per annum or the maximum rate permitted under applicable law (“Default Interest”); provided, however,
that no Default Interest shall accrue during the Fundamental Default Measuring Period (as defined below). Additionally, following
the occurrence of any Event of Default, Borrower may, at its option, pay any Lender Conversion in cash instead of Lender Conversion
Shares by paying to Lender on or before the applicable Delivery Date (as defined below) a cash amount equal to the number of Lender
Conversion Shares set forth in the applicable Lender Conversion Notice multiplied by the highest intra-day trading price of the
Common Stock that occurs during the period beginning on the date the applicable Event of Default occurred and ending on the date
of the applicable Lender Conversion Notice. In connection with acceleration described herein, Lender need not provide, and Borrower
hereby waives, any presentment, demand, protest or other notice of any kind, and Lender may immediately and without expiration
of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable
law. Such acceleration may be rescinded and annulled by Lender at any time prior to payment hereunder and Lender shall have all
rights as a holder of the Note until such time, if any, as Lender receives full payment pursuant to this Section 4.2. No such
rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. Nothing herein shall
limit Lender’s right to pursue any other remedies available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to Borrower’s failure to timely deliver Conversion Shares
upon Conversion of the Notes as required pursuant to the terms hereof.
4.3.
Fundamental Default Remedies. Notwithstanding anything to the contrary herein, in addition to all other remedies set forth
herein, the Fundamental Liquidated Damages Amount shall be added to the Outstanding Balance upon Lender’s delivery to Borrower
of a notice (which notice Lender may deliver to Borrower at any time following the occurrence of a Fundamental Default) setting
forth its election to declare a Fundamental Default and the Fundamental Liquidated Damages Amount that will be added to the Outstanding
Balance.
4.4.
Certain Additional Rights. Notwithstanding anything to the contrary herein, in the event Borrower fails to make any payment
or otherwise to deliver any Conversion Shares as and when required under this Note, then (i) the Lender Conversion Price for all
Lender Conversions occurring after the date of such failure to pay shall equal the lower of the Lender Conversion Price applicable
to any Lender Conversion and the Market Price as of any applicable date of Conversion, and (ii) the true-up provisions of Section
11 below shall apply to all Lender Conversions that occur after the date of such failure to pay, provided that all references
to the “Installment Notice” in Section 11 shall be replaced with references to a “Lender Conversion Notice”
for purposes of this Section 4.4, all references to “Installment Conversion Shares” in Section 11 shall be replaced
with references to “Lender Conversion Shares” for purposes of this Section 4.4, and all references to the “Installment
Conversion Price” in Section 11 shall be replaced with references to the “Lender Conversion Price” for purposes
of this Section 4.4.
4.5.
Cross Default. A breach or default by Borrower of any covenant or other term or condition contained in any Other Agreements
(as defined below) shall, at the option of Lender, be considered an Event of Default under this Note, in which event Lender shall
be entitled (but in no event required) to apply all rights and remedies of Lender under the terms of this Note. “Other
Agreements” means, collectively, (a) all existing and future agreements and instruments between, among or by Borrower
(or an affiliate), on the one hand, and Lender (or an affiliate), on the other hand, and (b) any financing agreement or a material
agreement that affects Borrower’s ongoing business operations. For the avoidance of doubt, all existing and future loan
transactions between Borrower and Lender and their respective affiliates will be cross-defaulted with each other loan transaction
and with all other existing and future debt of Borrower to Lender.
5.
Unconditional Obligation; No Offset. Borrower acknowledges that this Note is an unconditional, valid, binding and enforceable
obligation of Borrower not subject to offset, deduction or counterclaim of any kind. Borrower hereby waives any rights of offset
it now has or may have hereafter against Lender, its successors and assigns, and agrees to make the payments or conversions called
for herein in accordance with the terms of this Note.
6.
Waiver. No waiver of any provision of this Note shall be effective unless it is in the form of a writing signed by the
party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other
provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in
writing.
7.
Rights Upon Issuance of Securities.
7.1.
Subsequent Equity Sales. Except with respect to Excluded Securities, if Borrower or any subsidiary thereof, as applicable,
at any time this Note is outstanding, shall sell or issue any Common Stock to Lender or any third party for a price that is less
than the then effective Lender Conversion Price, then such Lender Conversion Price shall be automatically reduced and only reduced
to equal such lower issuance price. Except with respect to Excluded Securities, if Borrower or any subsidiary thereof, as applicable,
at any time this Note is outstanding, shall sell or grant any option to any party to purchase, or sell or grant any right to reprice,
or issue any Common Stock, preferred shares convertible into Common Stock, or debt, warrants, options or other instruments or
securities to Lender or any third party which are convertible into or exercisable for shares of Common Stock (together herein
referred to as “Equity Securities”), including without limitation any Deemed Issuance (as defined herein),
at an effective price per share less than the then effective Lender Conversion Price (such issuance, together with any sale of
Common Stock, is referred to herein as a “Dilutive Issuance”), then, the Lender Conversion Price shall be automatically
reduced and only reduced to equal such lower effective price per share. If the holder of any Equity Securities so issued shall
at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices
or otherwise, or due to warrants, options, or rights per share which are issued in connection with such Dilutive Issuance, be
entitled to receive shares of Common Stock at an effective price per share that is less than the Lender Conversion Price, such
issuance shall be deemed to have occurred for less than the Lender Conversion Price on the date of such Dilutive Issuance, and
the then effective Lender Conversion Price shall be reduced and only reduced to equal such lower effective price per share. Such
adjustments described above to the Lender Conversion Price shall be permanent (subject to additional adjustments under this section),
and shall be made whenever such Common Stock or Equity Securities are issued. Borrower shall notify Lender, in writing, no later
than the Trading Day following the issuance of any Common Stock or Equity Securities subject to this Section 7.1, indicating therein
the applicable issuance price, or applicable reset price, exchange price, conversion price, or other pricing terms (such notice,
the “Dilutive Issuance Notice”). For purposes of clarification, whether or not Borrower provides a Dilutive
Issuance Notice pursuant to this Section 7.1, upon the occurrence of any Dilutive Issuance, on the date of such Dilutive Issuance
the Lender Conversion Price shall be lowered to equal the applicable effective price per share regardless of whether Borrower
or Lender accurately refers to such lower effective price per share in any Installment Notice or Lender Conversion Notice.
7.2.
Adjustment of Lender Conversion Price upon Subdivision or Combination of Common Stock. Without limiting any provision hereof,
if Borrower at any time on or after the Effective Date subdivides (by any stock split, stock dividend, recapitalization or otherwise)
one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Lender Conversion Price in
effect immediately prior to such subdivision will be proportionately reduced. Without limiting any provision hereof, if Borrower
at any time on or after the Effective Date combines (by combination, reverse stock split or otherwise) one or more classes of
its outstanding shares of Common Stock into a smaller number of shares, the Lender Conversion Price in effect immediately prior
to such combination will be proportionately increased. Any adjustment pursuant to this Section 7.2 shall become effective immediately
after the effective date of such subdivision or combination. If any event requiring an adjustment under this Section 7.2 occurs
during the period that a Lender Conversion Price is calculated hereunder, then the calculation of such Lender Conversion Price
shall be adjusted appropriately to reflect such event.
7.3.
Other Events. In the event that Borrower (or any subsidiary) shall take any action to which the provisions hereof are not
strictly applicable, or, if applicable, would not operate to protect Lender from dilution or if any event occurs of the type contemplated
by the provisions of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting
of stock appreciation rights, phantom stock rights or other rights with equity features), then Borrower’s board of directors
shall in good faith determine and implement an appropriate adjustment in the Lender Conversion Price so as to protect the rights
of Lender, provided that no such adjustment pursuant to this Section 7.3 will increase the Lender Conversion Price as otherwise
determined pursuant to this Section 7, provided further that if Lender does not accept such adjustments as appropriately protecting
its interests hereunder against such dilution, then Borrower’s board of directors and Lender shall agree, in good faith,
upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination
shall be final and binding and whose fees and expenses shall be borne by Borrower.
8.
Borrower Installments.
8.1.
Installment Conversion Price. Subject to the adjustments set forth herein, the conversion price for each Installment Conversion
(the “Installment Conversion Price”) shall be the lesser of (i) the Lender Conversion Price, and (ii) 60% (the
“Conversion Factor”) of the average of the three (3) lowest Closing Bid Prices in the twenty (20) Trading Days
immediately preceding the applicable Conversion (the “Market Price”), provided that if at any time the average
of the three (3) lowest Closing Bid Prices in the twenty (20) Trading Days immediately preceding any date of measurement is below
$0.60, then in such event the then-current Conversion Factor shall be reduced to 55% for all future Conversions (subject to other
reductions set forth in this section). Additionally, if at any time after the Effective Date, the Conversion Shares are not DTC
Eligible, then the then-current Conversion Factor will automatically be reduced by 5% for all future Conversions. Finally, in
addition to the Default Effect, if any Major Default occurs after the Effective Date, the Conversion Factor shall automatically
be reduced for all future Conversions by an additional 5% for each of the first three (3) Major Defaults that occur after the
Effective Date (for the avoidance of doubt, each occurrence of any Major Default shall be deemed to be a separate occurrence for
purposes of the foregoing reductions in Conversion Factor, even if the same Major Default occurs three (3) separate times). For
example, the first time the Conversion Shares are not DTC Eligible, the Conversion Factor for future Conversions thereafter will
be reduced from 60% to 55% for purposes of this example. If, thereafter, there are three (3) separate occurrences of a Major Default
pursuant to Section 4.1(iii), then for purposes of this example the Conversion Factor would be reduced by 5% for the first such
occurrence, and so on for each of the second and third occurrences of such Major Default.
8.2.
Installment Conversions. Beginning on the date that is six (6) months after the Purchase Price Date and on the same day
of each month thereafter until the Maturity Date (each, an “Installment Date”), Borrower shall pay to Lender
the applicable Installment Amount due on such date, subject to the provisions of this Section 8. Payments of each Installment
Amount may be made (a) in cash, or (b) by converting such Installment Amount into shares of Common Stock (“Installment
Conversion Shares”, and together with the Lender Conversion Shares, the “Conversion Shares”) in accordance
with this Section 8 (each an “Installment Conversion”, and together with Lender Conversions, a “Conversion”)
per the following formula: the number of Installment Conversion Shares equals the portion of the applicable Installment Amount
being converted divided by the Installment Conversion Price, or (c) by any combination of the foregoing, so long as the cash is
delivered to Lender on the applicable Installment Date and the Installment Conversion Shares are delivered to Lender on or before
the applicable Delivery Date. Notwithstanding the foregoing, Borrower will not be entitled to elect an Installment Conversion
with respect to any portion of any applicable Installment Amount and shall be required to pay the entire amount of such Installment
Amount in cash if on the applicable Installment Notice Due Date (defined below) there is an Equity Conditions Failure (as defined
below), and such failure is not waived in writing by Lender. Moreover, in the event Borrower desires to pay all or any portion
of any Installment Amount in cash, it must notify Lender in writing of such election and the portion of the applicable Installment
Amount it elects to pay in cash not more than twenty-five (25) or less than fifteen (15) Trading Days prior to the applicable
Installment Date. If Borrower fails to so notify Lender, it shall not be permitted to elect to pay any portion of such Installment
Amount in cash unless otherwise agreed to by Lender in writing or proposed by Lender in an Installment Notice delivered by Lender
to Borrower. Notwithstanding that failure to repay this Note in full by the Maturity Date is an Event of Default, the Installment
Dates shall continue after the Maturity Date pursuant to this Section 8 until the Outstanding Balance is repaid in full, provided
that Lender shall, in Lender’s sole discretion, determine the Installment Amount for each Installment Date after the Maturity
Date.
8.3.
Allocation of Installment Amounts. Subject to Section 8.2 regarding an Equity Conditions Failure, for each Installment
Date (each, an “Installment Notice Due Date”), Borrower may elect to allocate the amount of the applicable
Installment Amount between cash and via an Installment Conversion, by email or fax delivery of a notice to Lender substantially
in the form attached hereto as Exhibit B (each, an “Installment Notice”), provided, that to be effective,
each applicable Installment Notice must be received by Lender not more than twenty-five (25) or less than fifteen (15) Trading
Days prior to the applicable Installment Notice Due Date. If Lender has not received an Installment Notice within such time period,
then Lender may prepare the Installment Notice and deliver the same to Borrower by fax or email. Following its receipt of such
Installment Notice, Borrower may either ratify Lender’s proposed allocation in the applicable Installment Notice or elect
to change the allocation by written notice to Lender by email or fax on or before 12:00 p.m. New York time on the applicable Installment
Date, so long as the sum of the cash payments and the amount of Installment Conversions equal the applicable Installment Amount,
provided that Lender must approve any increase to the portion of the Installment Amount payable in cash. If Borrower fails to
notify Lender of its election to change the allocation prior to the deadline set forth in the previous sentence (and seek approval
to increase the amount payable in cash), it shall be deemed to have ratified and accepted the allocation set forth in the applicable
Installment Notice prepared by Lender. If neither Borrower nor Lender prepare and deliver to the other party an Installment Notice
as outlined above, then Borrower shall be deemed to have elected that the entire Installment Amount be converted via an Installment
Conversion. Borrower acknowledges and agrees that regardless of which party prepares the applicable Installment Notice, the amounts
and calculations set forth thereon are subject to correction or adjustment because of error, mistake, or any adjustment resulting
from an Event of Default or other adjustment permitted under the Transaction Documents (an “Adjustment”). Furthermore,
no error or mistake in the preparation of such notices, or failure to apply any Adjustment that could have been applied prior
to the preparation of an Installment Notice may be deemed a waiver of Lender’s right to enforce the terms of any Note, even
if such error, mistake, or failure to include an Adjustment arises from Lender’s own calculation. Borrower shall deliver
the Installment Conversion Shares from any Installment Conversion to Lender in accordance with Section 9 below on or before each
applicable Installment Date.
9.
Method of Conversion Share Delivery. On or before the close of business on the third (3rd) Trading Day following the Installment
Date or the third (3rd) Trading Day following the date of delivery of a Lender Conversion Notice, as applicable (the “Delivery
Date”), Borrower shall deliver or cause to be delivered to Lender or its broker (as designated in the Lender Conversion
Notice), via reputable overnight courier, a certificate or certificates representing the aggregate number of Conversion Shares
to which Lender shall be entitled, registered in the name of Lender or its designee. For the avoidance of doubt, Borrower has
not met its obligation to deliver Conversion Shares by the Delivery Date unless Lender or its broker, as applicable, has actually
received the certificate representing the applicable Conversion Shares no later than the close of business on the relevant Delivery
Date pursuant to the terms set forth above.
10.
Conversion Delays. If Borrower fails to deliver Conversion Shares or True-Up Shares in accordance with the timeframes stated
in Sections 3, 8, 9, or 11, as applicable, Lender, at any time prior to selling all of those Conversion Shares or True-Up Shares,
as applicable, may rescind in whole or in part that particular Conversion attributable to the unsold Conversion Shares or True-Up
Shares, with a corresponding increase to the Outstanding Balance (any returned Conversion Amount will tack back to the Purchase
Price Date for purposes of determining the holding period under Rule 144). In addition, for each Lender Conversion, in the event
that Lender Conversion Shares are not delivered by the fourth Trading Day (inclusive of the day of the Lender Conversion), a late
fee equal to the greater of (a) $500.00 per day and (b) 2% of the applicable Lender Conversion Share Value rounded to the nearest
multiple of $100.00 (but in any event the cumulative amount of such late fees for each Lender Conversion shall not exceed 200%
of the applicable Lender Conversion Share Value) will be assessed for each day after the third Trading Day (inclusive of the day
of the Lender Conversion) until Lender Conversion Share delivery is made; and such late fee will be added to the Outstanding Balance
(such fees, the “Conversion Delay Late Fees”). For illustration purposes only, if Lender delivers a Lender
Conversion Notice to Borrower pursuant to which Borrower is required to deliver 100,000 Lender Conversion Shares to Lender and
on the Delivery Date such Lender Conversion Shares have a Lender Conversion Share Value of $20,000.00 (assuming a Closing Sale
Price on the Delivery Date of $0.20 per share of Common Stock), then in such event a Conversion Delay Late Fee in the amount of
$500.00 per day (the greater of $500.00 per day and $20,000.00 multiplied by 2%, which is $400.00) would be added to the Outstanding
Balance of the Note until such Lender Conversion Shares are delivered to Lender. For purposes of this example, if the Lender Conversion
Shares are delivered to Lender twenty (20) days after the applicable Delivery Date, the total Conversion Delay Late Fees that
would be added to the Outstanding Balance would be $10,000.00 (20 days multiplied by $500.00 per day). If the Lender Conversion
Shares are delivered to Lender one hundred (100) days after the applicable Delivery Date, the total Conversion Delay Late Fees
that would be added to the Outstanding Balance would be $40,000.00 (100 days multiplied by $500.00 per day, but capped at 200%
of the Lender Conversion Share Value).
11.
True-Up. On the date that is twenty (20) Trading Days (a “True-Up Date”) from each date Borrower delivers
Free Trading (as defined below) Installment Conversion Shares to Lender, there shall be a true-up where Borrower shall deliver
to Lender additional Installment Conversion Shares (“True-Up Shares”) if the Installment Conversion Price as
of the True-Up Date is less than the Installment Conversion Price used in the applicable Installment Notice. In such event, Borrower
shall deliver to Lender within three (3) Trading Days of the True-Up Date (the “True-Up Share Delivery Date”)
a number of True-Up Shares equal to the difference between the number of Installment Conversion Shares that would have been delivered
to Lender on the True-Up Date based on the Installment Conversion Price as of the True-Up Date and the number of Installment Conversion
Shares originally delivered to Lender pursuant to the applicable Installment Notice. For the avoidance of doubt, if the Installment
Conversion Price as of the True-Up Date is higher than the Installment Conversion Price set forth in the applicable Installment
Notice, then Borrower shall have no obligation to deliver True-Up Shares to Lender, nor shall Lender have any obligation to return
any excess Installment Conversion Shares to Borrower under any circumstance. For the convenience of Borrower only, Lender may,
in its sole discretion, deliver to Borrower a notice (pursuant to a form of notice substantially in the form attached hereto as
Exhibit C) informing Borrower of the number of True-Up Shares it is obligated to deliver to Lender as of any given True-Up
Date, provided that if Lender does not deliver any such notice Borrower shall not be relieved of its obligation to deliver True-Up
Shares pursuant to this Section 11. Notwithstanding the foregoing, if Borrower fails to deliver any required True-Up Shares on
or before any applicable True-Up Share Delivery Date, then in such event the Outstanding Balance of this Note will automatically
increase (under Lender’s and Borrower’s expectations that any such increase will tack back to the Purchase Price Date
for purposes of determining the holding period under Rule 144) by a sum equal to the number of True-Up Shares deliverable as of
the applicable True-Up Date multiplied by the Market Price for the Common Stock as of the applicable True-Up Date.
12.
Ownership Limitation. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents,
if at any time Lender shall or would be issued shares of Common Stock under any of the Transaction Documents, but such issuance
would cause Lender (together with its affiliates) to beneficially own a number of shares exceeding 4.99% of the number of shares
of Common Stock outstanding on such date (including for such purpose the shares of Common Stock issuable upon such issuance) (the
“Maximum Percentage”), then Borrower must not issue to Lender shares of the Common Stock which would exceed
the Maximum Percentage. For purposes of this section, beneficial ownership of Common Stock will be determined pursuant to Section
13(d) of the 1934 Act. The shares of Common Stock issuable to Lender that would cause the Maximum Percentage to be exceeded are
referred to herein as the “Ownership Limitation Shares”. Borrower will reserve the Ownership
Limitation Shares for the exclusive benefit of Lender. From time to time, Lender may notify Borrower in writing of the number
of the Ownership Limitation Shares that may be issued to Lender without causing Lender to exceed the Maximum Percentage. Upon
receipt of such notice, Borrower shall be unconditionally obligated to immediately issue such designated shares to Lender, with
a corresponding reduction in the number of the Ownership Limitation Shares. Notwithstanding the forgoing, the term “4.99%”
above shall be replaced with “9.99%” at such time as the Market Capitalization of the Common Stock is less than $10,000,000.00.
Notwithstanding any other provision contained herein, if the term “4.99%” is replaced with “9.99%” pursuant
to the preceding sentence, such increase to “9.99%” shall remain at 9.99% until increased, decreased or waived by
Lender as set forth below. By written notice to Borrower, Lender may increase, decrease or waive the Maximum Percentage as to
itself but any such waiver will not be effective until the 61st day after delivery thereof. The foregoing 61-day notice requirement
is enforceable, unconditional and non-waivable and shall apply to all affiliates and assigns of Lender.
13.
Payment of Collection Costs. If this Note is placed in the hands of an attorney for collection or enforcement prior to
commencing arbitration or legal proceedings, or is collected or enforced through any arbitration or legal proceeding, or Lender
otherwise takes action to collect amounts due under this Note or to enforce the provisions of this Note, then Borrower shall pay
the costs incurred by Lender for such collection, enforcement or action including, without limitation, attorneys’ fees and
disbursements. Borrower also agrees to pay for any costs, fees or charges of its transfer agent that are charged to Lender pursuant
to any Conversion or issuance of shares pursuant to this Note.
14.
Opinion of Counsel. In the event that an opinion of counsel is needed for any matter related to this Note, Lender has the
right to have any such opinion provided by its counsel. Lender also has the right to have any such opinion provided by Borrower’s
counsel.
15.
Governing Law. This Note shall be construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Utah, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other than the State of Utah. The provisions set forth in the Purchase
Agreement to determine the proper venue for any disputes are incorporated herein by this reference.
16.
Resolution of Disputes.
16.1.
Arbitration of Disputes. By its acceptance of this Note, each party agrees to be bound by the Arbitration Provisions set
forth as an Exhibit to the Purchase Agreement.
16.2.
Calculation Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any Calculations (as defined
in the Purchase Agreement), such dispute will be resolved in the manner set forth in the Purchase Agreement.
17.
Cancellation. After repayment or conversion of the entire Outstanding Balance (including without limitation delivery of
True-Up Shares pursuant to the payment of the final Installment Amount, if applicable), this Note shall be deemed paid in full,
shall automatically be deemed canceled, and shall not be reissued.
18.
Amendments. The prior written consent of both parties hereto shall be required for any change or amendment to this Note.
19.
Assignments. Borrower may not assign this Note without the prior written consent of Lender. This Note and any shares of
Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by Lender without the consent of
Borrower.
20.
Time of the Essence. Time is expressly made of the essence with respect to each and every provision of this Note and the
documents and instruments entered into in connection herewith.
21.
Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be
given in accordance with the subsection of the Purchase Agreement titled “Notices.”
22.
Liquidated Damages. Lender and Borrower agree that in the event Borrower fails to comply with any of the terms or provisions
of this Note, Lender’s damages would be uncertain and difficult (if not impossible) to accurately estimate because of the
parties’ inability to predict future interest rates, future share prices, future trading volumes and other relevant factors.
Accordingly, Lender and Borrower agree that any fees, balance adjustments, default interest or other charges assessed under this
Note are not penalties but instead are intended by the parties to be, and shall be deemed, liquidated damages (under Lender’s
and Borrower’s expectations that any such liquidated damages will tack back to the Closing Date for purposes of determining
the holding period under Rule 144).
[Remainder
of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the Effective Date.
|
BORROWER: |
|
Inception
Mining Inc. |
|
|
|
|
By: |
/s/
Michael Ahlin |
|
Name: |
Michael Ahlin |
|
Title: |
CEO |
ACKNOWLEDGED, ACCEPTED AND AGREED:
LENDER:
Typenex
Co-Investment, LLC
By: |
Red
Cliffs Investments, Inc., its Manager |
|
|
|
|
|
|
By: |
/s/
John M. Fife |
|
|
|
John
M. Fife, President |
|
[Signature
Page to Convertible Promissory Note]
ATTACHMENT
1
DEFINITIONS
For
purposes of this Note, the following terms shall have the following meanings:
A1.
“Adjusted Outstanding Balance” means the Outstanding Balance of this Note as of the date the applicable Fundamental
Default occurred less any Conversion Delay Late Fees included in such Outstanding Balance.
A2.
“Approved Stock Plan” means any stock option plan which has been approved by the board of directors of Borrower,
pursuant to which Borrower’s securities may be issued to any employee, officer or director for services provided to Borrower.
A3.
“Closing Bid Price” and “Closing Sale Price” means, for any security as of any date, the
last closing bid price and last closing trade price, respectively, for such security on its principal market, as reported by Bloomberg,
or, if its principal market begins to operate on an extended hours basis and does not designate the closing bid price or the closing
trade price (as the case may be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00
p.m., New York time, as reported by Bloomberg, or, if its principal market is not the principal securities exchange or trading
market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply,
the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported
for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such
security as reported in “OTC Pink” by Pink OTC Markets Inc. (formerly Pink Sheets LLC), and any successor thereto.
If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market
value as mutually determined by Lender and Borrower. If Lender and Borrower are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance with the procedures in Section 16.2. All such determinations
shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such
period.
A4.
“Deemed Issuance” means an issuance of Common Stock that shall be deemed to have occurred on the latest possible
permitted date pursuant to the terms hereof or any applicable Warrant in the event Borrower fails to deliver Conversion Shares
as and when required pursuant to Sections 3 or 8 of the Note or Warrant Shares (as defined in the Purchase Agreement) as and when
required pursuant to the Warrant. For the avoidance of doubt, if Borrower has elected or is deemed under Section 8.3 to have elected
to pay an Installment Amount in Installment Conversion Shares and fails to deliver such Installment Conversion Shares, such failure
shall be considered a Deemed Issuance hereunder even if an Equity Conditions Failure exists at that time or other relevant date
of determination.
A5.
“DTC” means the Depository Trust Company.
A6.
“DTC Eligible” means, with respect to the Common Stock, that such Common Stock is eligible to be deposited
in certificate form at the DTC, cleared and converted into electronic shares by the DTC and held in the name of the clearing firm
servicing Lender’s brokerage firm for the benefit of Lender.
A7.
“Equity Conditions Failure” means that any of the following conditions has not been satisfied during any applicable
Equity Conditions Measuring Period (as defined below): (i) with respect to the applicable date of determination all of the Conversion
Shares are freely tradable under Rule 144 or without the need for registration under any applicable federal or state securities
laws (in each case, disregarding any limitation on conversion of this Note); (ii) on each day during the period beginning one
month prior to the applicable date of determination and ending on and including the applicable date of determination (the “Equity
Conditions Measuring Period”), the Common Stock is listed or designated for quotation (as applicable) on any of The
New York Stock Exchange, NYSE Amex, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the
OTC Bulletin Board, the OTCQX or the OTCQB (each, an “Eligible Market”) and shall not have been suspended from
trading on any such Eligible Market (other than suspensions of not more than two (2) Trading Days and occurring prior to the applicable
date of determination due to business announcements by Borrower); (iii) on each day during the Equity Conditions Measuring Period,
Borrower shall have delivered all shares of Common Stock issuable upon conversion of this Note on a timely basis as set forth
in Section 9 hereof and all other shares of capital stock required to be delivered by Borrower on a timely basis as set forth
in the other Transaction Documents; (iv) any shares of Common Stock to be issued in connection with the event requiring determination
may be issued in full without violating Section 12 hereof (Lender acknowledges that Borrower shall be entitled to assume that
this condition has been met for all purposes hereunder absent written notice from Lender); (v) any shares of Common Stock to be
issued in connection with the event requiring determination may be issued in full without violating the rules or regulations of
the Eligible Market on which the Common Stock is then listed or designated for quotation (as applicable); (vi) on each day during
the Equity Conditions Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall
have occurred which has not been abandoned, terminated or consummated; (vii) Borrower shall have no knowledge of any fact that
would reasonably be expected to cause any of the Conversion Shares to not be freely tradable without the need for registration
under any applicable state securities laws (in each case, disregarding any limitation on conversion of this Note); (viii) on each
day during the Equity Conditions Measuring Period, Borrower otherwise shall have been in material compliance with each, and shall
not have breached any, term, provision, covenant, representation or warranty of any Transaction Document; (ix) without limiting
clause (viii) above, on each day during the Equity Conditions Measuring Period, there shall not have occurred an Event of Default
or an event that with the passage of time or giving of notice would constitute an Event of Default; (x) on each Installment Notice
Due Date and each Installment Date, the average and median daily dollar volume of the Common Stock on its principal market for
the previous twenty (20) Trading Days shall be greater than $7,500.00; (xi) the ten (10) day average VWAP of the Common Stock
is greater than $0.30, and (xii) the Common Stock shall be DTC Eligible as of each applicable Installment Notice Due Date, Installment
Date or other date of determination.
Attachment 1 to Convertible Promissory Note, Page 1 |
A8.
“Excluded Securities” means any shares of Common Stock, options, or convertible securities issued or issuable
in connection with any Approved Stock Plan; provided that the option term, exercise price or similar provisions of any
issuances pursuant to such Approved Stock Plan are not amended, modified or changed on or after the Purchase Price Date.
A9.
“Free Trading” means that (a) the shares or certificate(s) representing the applicable shares of Common Stock
have been cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing
firm servicing such brokerage, and (b) such shares are held in the name of the clearing firm servicing Lender’s brokerage
firm and have been deposited into such clearing firm’s account for the benefit of Lender.
A10.
“Fundamental Default” means that Borrower either fails to pay the entire Outstanding Balance to Lender on or
before the Maturity Date or fails to pay the Mandatory Default Amount within three (3) Trading Days of the date Lender delivers
any notice of acceleration to Borrower pursuant to Section 4.2 of this Note.
A11.
“Fundamental Default Conversion Value” means the Adjusted Outstanding Balance multiplied by the highest Fundamental
Default Ratio that occurs during the Fundamental Default Measuring Period.
A12.
“Fundamental Default Measuring Period” means a number of months equal to the Outstanding Balance as of the
date the Fundamental Default occurred divided by the Installment Amount, with such number being rounded up to the next whole month;
provided, however, that if Borrower repays the entire Outstanding Balance prior to the conclusion of the Fundamental Default
Measuring Period, the Fundamental Default Measuring Period shall end on the date of repayment. For illustration purposes only,
if the Outstanding Balance were equal to $125,000 as of the date a Fundamental Default occurred and if the Installment Amount
were $28,500, then the Fundamental Default Measuring Period would equal five (5) months calculated as follows: $125,000/$28,500
equals 4.386, rounded up to five (5).
A13.
“Fundamental Default Ratio” means a ratio that will be calculated on each Trading Day during the Fundamental
Default Measuring Period by dividing the Closing Sale Price for the Common Stock on a given Trading Day by the Lender Conversion
Price (as adjusted pursuant to the terms hereof) in effect for such Trading Day.
A14.
“Fundamental Liquidated Damages Amount” means the greater of (i) (a) the quotient of the Outstanding Balance
on the date the Fundamental Default occurred divided by the then-current Conversion Factor, minus (b) the Outstanding Balance
on the date the Fundamental Default occurred, or (ii) the Fundamental Default Conversion Value.
A15.
“Fundamental Transaction” means that (y) (i) Borrower or any of its subsidiaries shall, directly or indirectly,
in one or more related transactions, consolidate or merge with or into (whether or not Borrower or any of its subsidiaries is
the surviving corporation) any other person or entity, or (ii) Borrower or any of its subsidiaries shall, directly or indirectly,
in one or more related transactions, sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially
all of its respective properties or assets to any other person or entity, or (iii) Borrower or any of its subsidiaries shall,
directly or indirectly, in one or more related transactions, allow any other person or entity to make a purchase, tender or exchange
offer that is accepted by the holders of more than 50% of the outstanding shares of voting stock of Borrower (not including any
shares of voting stock of Borrower held by the person or persons making or party to, or associated or affiliated with the persons
or entities making or party to, such purchase, tender or exchange offer), or (iv) Borrower or any of its subsidiaries shall, directly
or indirectly, in one or more related transactions, consummate a stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other person or
entity whereby such other person or entity acquires more than 50% of the outstanding shares of voting stock of Borrower (not including
any shares of voting stock of Borrower held by the other persons or entities making or party to, or associated or affiliated with
the other persons or entities making or party to, such stock or share purchase agreement or other business combination), or (v)
Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, reorganize, recapitalize
or reclassify the Common Stock, other than an increase in the number of authorized shares of Borrower’s Common Stock, or
(z) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934
Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in
Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and
outstanding voting stock of Borrower.
Attachment 1 to Convertible Promissory Note, Page 2 |
A16.
“Installment Amount” means the greater of (i) $28,750.00 ($115,000.00 ÷ 4), plus the sum of any accrued
and unpaid interest as of the applicable Installment Date and accrued, and unpaid late charges, if any, under this Note as of
the applicable Installment Date, and any other amounts accruing or owing to Lender under this Note as of such Installment Date,
and (ii) the then Outstanding Balance divided by the number of Installment Dates remaining prior to the Maturity Date.
A17.
“Lender Conversion Share Value” means the product of the number of Lender Conversion Shares deliverable
pursuant to any Lender Conversion multiplied by the Closing Sale Price of the Common Stock on the Delivery Date for such Lender
Conversion.
A18.
“Major Default” means any Event of Default occurring under Sections 4.1(i), (iii), (iv), (xi), or (xiv) of
this Note.
A19.
“Market Capitalization of the Common Stock” shall mean the product equal to (a) the average VWAP of the Common
Stock for the immediately preceding fifteen (15) Trading Days, multiplied by (b) the aggregate number of outstanding shares of
Common Stock as reported on Borrower’s most recently filed Form 10-Q or Form 10-K.
A20.
“Minor Default” means any Event of Default that is not a Major Default or a Fundamental Default.
A21.
“Optional Prepayment Liquidated Damages Amount” means an amount equal to the difference between (a) the product
of (i) the number of shares of Common Stock obtained by dividing (1) the applicable Optional Prepayment Amount by (2) the Lender
Conversion Price as of the date Borrower delivered the applicable Optional Prepayment Amount to Lender, multiplied by (ii) the
Closing Sale Price of the Common Stock on the date Borrower delivered the applicable Optional Prepayment Amount to Lender, and
(b) the applicable Optional Prepayment Amount paid by Borrower to Lender. For illustration purposes only, if the applicable Optional
Prepayment Amount were $50,000.00, the Lender Conversion Price as of the date the Optional Prepayment Amount was paid to Lender
was equal to $0.75 per share of Common Stock, and the Closing Sale Price of a share of Common Stock as of such date was equal
to $1.00, then the Optional Prepayment Liquidated Damages Amount would equal $16,666.67 computed as follows: (a) $66,666.67 (calculated
as (i) (1) $50,000.00 divided by (2) $0.75 multiplied by (ii) $1.00) minus (b) $50,000.00.
A22.
“Trading Day” shall mean any day on which the Common Stock is traded or tradable for any period on the Common
Stock’s principal market, or on the principal securities exchange or other securities market on which the Common Stock is
then being traded.
Attachment 1 to Convertible Promissory Note, Page 3 |
EXHIBIT
A
Typenex
Co-Investment, LLC
303
East Wacker Drive, Suite 1200
Chicago,
Illinois 60601
Inception Mining Inc. |
Date: __________________ |
Attn: Michael Ahlin |
|
5320 South 900 East, Suite 260 |
|
Salt Lake City, Utah 84107 |
|
LENDER
CONVERSION NOTICE
The
above-captioned Lender hereby gives notice to Inception Mining Inc., a Nevada corporation (the “Borrower”),
pursuant to that certain Convertible Promissory Note made by Borrower in favor of Lender on September 24, 2014 (the “Note”),
that Lender elects to convert the portion of the Note balance set forth below into fully paid and non-assessable shares of Common
Stock of Borrower as of the date of conversion specified below. Said conversion shall be based on the Lender Conversion Price
set forth below. In the event of a conflict between this Lender Conversion Notice and the Note, the Note shall govern, or, in
the alternative, at the election of Lender in its sole discretion, Lender may provide a new form of Lender Conversion Notice to
conform to the Note. Capitalized terms used in this notice without definition shall have the meanings given to them in the Note.
|
A. |
Date
of Conversion: ____________ |
|
B. |
Lender Conversion #: ____________ |
|
C. |
Conversion Amount: ____________ |
|
D. |
Lender Conversion Price: _______________
|
|
E. |
Lender Conversion Shares: _______________
(C divided by D) |
|
F. |
Remaining Outstanding Balance of Note: ____________*
|
*
Subject to adjustments for corrections, defaults, interest and other adjustments permitted by the Transaction Documents (as defined
in the Purchase Agreement), the terms of which shall control in the event of any dispute between the terms of this Lender Conversion
Notice and such Transaction Documents.
$_________________
of the Conversion Amount converted hereunder shall be deducted from the Installment Amount(s) relating to the following Installment
Date(s): __________________________________________.
So
that DTC processing can begin, please deliver, via reputable overnight courier, a certificate representing DTC Eligible Lender
Conversion Shares to:
To
the extent the Lender Conversion Shares are not DTC Eligible, please deliver, via reputable overnight courier, a certificate representing
the non-DTC Eligible Lender Conversion Shares to the party at the address set forth above.
Exhibit A to Convertible Promissory Note, Page 1 |
Sincerely,
Lender: |
|
|
|
Typenex Co-Investment,
LLC |
|
|
|
|
|
By: |
Red Cliffs Investments, Inc., its Manager |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
John M. Fife, President |
|
Exhibit A to Convertible Promissory Note, Page 2 |
EXHIBIT
B
Inception
Mining Inc.
5320
South 900 East, Suite 260
Salt
Lake City, Utah 84107
Typenex Co-Investment,
LLC |
Date: _____________ |
Attn: John Fife |
|
303 East Wacker Drive, Suite 1200 |
|
Chicago, Illinois 60601 |
|
INSTALLMENT
NOTICE
The
above-captioned Borrower hereby gives notice to Typenex Co-Investment, LLC, a Utah limited liability company (the “Lender”),
pursuant to that certain Convertible Promissory Note made by Borrower in favor of Lender on September 24, 2014 (the “Note”),
of certain Borrower elections and certifications related to payment of the Installment Amount of $_________________ due on ___________,
201_ (the “Installment Date”). In the event of a conflict between this Installment Notice and the Note, the
Note shall govern, or, in the alternative, at the election of Lender in its sole discretion, Lender may provide a new form of
Installment Notice to conform to the Note. Capitalized terms used in this notice without definition shall have the meanings given
to them in the Note.
INSTALLMENT
CONVERSION AND CERTIFICATIONS
AS
OF THE INSTALLMENT DATE
A.
INSTALLMENT CONVERSION
|
A. |
Installment Date: ____________,
201_ |
|
B. |
Installment Amount: ____________ |
|
C. |
Portion of Installment Amount Borrower
elected to pay in cash: ____________ |
|
D. |
Portion of Installment Amount to be
converted into Common Stock: ____________ (B minus C) |
|
E. |
Installment Conversion Price: _______________
(lower of (i) Lender Conversion Price in effect and (ii) Market Price as of Installment Date) |
|
F. |
Installment Conversion Shares: _______________
(D divided by E) |
|
G. |
Remaining Outstanding Balance of Note: ____________
* |
*
Subject to adjustments for corrections, defaults, interest and other adjustments permitted by the Transaction Documents (as defined
in the Purchase Agreement), the terms of which shall control in the event of any dispute between the terms of this Installment
Notice and such Transaction Documents.
B.
EQUITY CONDITIONS CERTIFICATION
1.
Market Capitalization of the Common Stock:________________
(Check
One)
2.
_________ Borrower hereby certifies that no Equity Conditions Failure exists as of the Installment Date.
3.
_________ Borrower hereby gives notice that an Equity Conditions Failure has occurred and requests a waiver from Lender with respect
thereto. The Equity Conditions Failure is as follows:
Exhibit B to Convertible Promissory Note, Page 1 |
Sincerely,
Borrower:
Inception
Mining Inc.
Exhibit B to Convertible Promissory Note, Page 2 |
EXHIBIT
C
Typenex
Co-Investment, LLC
303
East Wacker Drive, Suite 1200
Chicago,
Illinois 60601
Inception Mining Inc. |
Date: __________________ |
Attn: _________________ |
|
5320 South 900 East, Suite 260 |
|
Salt Lake City, Utah 84107 |
|
TRUE-UP
NOTICE
The
above-captioned Lender hereby gives notice to Inception Mining Inc., a Nevada corporation (the “Borrower”),
pursuant to that certain Convertible Promissory Note made by Borrower in favor of Lender on September 24, 2014 (the “Note”),
of True-Up Conversion Shares related to _____________, 201_ (the “Installment Date”). In the event of a conflict
between this True-Up Notice and the Note, the Note shall govern, or, in the alternative, at the election of Lender in its sole
discretion, Lender may provide a new form of True-Up Notice to conform to the Note. Capitalized terms used in this notice without
definition shall have the meanings given to them in the Note.
TRUE-UP
CONVERSION SHARES AND CERTIFICATIONS
AS
OF THE TRUE-UP DATE
1.
TRUE-UP CONVERSION SHARES
|
A. |
Installment
Date: ____________, 201_ |
|
B. |
True-Up Date:
____________, 201_ |
|
C. |
Portion of Installment
Amount converted into Common Stock: _____________ |
|
D. |
True-Up Conversion
Price: _______________ (lower of (i) Lender Conversion Price in effect and (ii) Market Price as of True-Up Date) |
|
E. |
True-Up Conversion
Shares: _______________ (C divided by D) |
|
F. |
Installment Conversion
Shares delivered: ________________ |
|
G. |
True-Up Conversion
Shares to be delivered: ________________ (only applicable if E minus F is greater than zero) |
2.
EQUITY CONDITIONS CERTIFICATION (Section to be completed by Borrower)
A.
Market Capitalization of the Common Stock:________________
(Check
One)
B.
_________ Borrower hereby certifies that no Equity Conditions Failure exists as of the applicable True-Up Date.
C.
_________ Borrower hereby gives notice that an Equity Conditions Failure has occurred and requests a waiver from Lender with respect
thereto. The Equity Conditions Failure is as follows:
Exhibit C to Convertible Promissory Note, Page 1 |
Sincerely, |
|
|
|
Lender: |
|
|
|
Typenex Co-Investment,
LLC |
|
|
|
|
|
By: |
Red Cliffs Investments, Inc., its Manager |
|
|
|
|
|
|
By: |
|
|
|
|
John M. Fife, President |
|
ACKNOWLEDGED AND CERTIFIED BY: |
|
|
|
|
Borrower: |
|
|
|
|
|
Inception Mining Inc. |
|
|
|
|
By: |
|
|
Name: |
|
|
Title:
|
|
|
Exhibit C to Convertible Promissory Note, Page 2 |
EXHIBIT
D
Inception
Mining Inc.
5320
South 900 East, Suite 260
Salt
Lake City, Utah 84107
Typenex Co-Investment,
LLC |
Date: _____________ |
Attn: John Fife |
|
303 East Wacker Drive, Suite 1200 |
|
Chicago, Illinois 60601 |
|
NOTICE
OF EXERCISE
OF
BORROWER OFFSET RIGHT
The
above-captioned Borrower hereby gives notice to Typenex Co-Investment, LLC, a Utah limited liability company (the “Lender”),
pursuant to that certain Convertible Promissory Note made by Borrower in favor of Lender on September 24, 2014 (the “Note”),
of Borrower’s election to exercise the Borrower Offset Right as set forth below. In the event of a conflict between this
Notice of Exercise of Borrower Offset Right and the Note, the Note shall govern. Capitalized terms used in this notice without
definition shall have the meanings given to them in the Note.
|
A. |
Effective Date of Offset: ____________,
201_ |
|
B. |
Amount of Offset: ____________ |
|
C. |
Investor Note(s) Being Offset: _______________
|
*
Subject to adjustments for corrections, defaults, interest and other adjustments permitted by the Transaction Documents (as defined
in the Purchase Agreement), the terms of which shall control in the event of any dispute between the terms of this Notice of Exercise
of Borrower Offset Right and such Transaction Documents.
Sincerely,
Borrower:
Inception
Mining Inc.
Exhibit D to Convertible Promissory Note, Page 1 |
THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SUCH ACT AND ANY APPLICABLE STATE
SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO INCEPTION MINING INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
INCEPTION
MINING INC.
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
1. Issuance.
In consideration of good and valuable consideration as set forth in the Purchase Agreement (defined below), including without
limitation the Purchase Price (as defined in the Purchase Agreement), the receipt and sufficiency of which are hereby acknowledged
by Inception Mining Inc., a Nevada corporation (“Company”); Typenex
Co-Investment, LLC, a Utah limited liability company, its successors and/or registered assigns (“Investor”),
is hereby granted the right to purchase at any time on or after the Issue Date (as defined below) until the date which is the
last calendar day of the month in which the fifth anniversary of the Issue Date occurs (the “Expiration Date”),
a number of fully paid and non-assessable shares (the “Warrant Shares”) of Company’s common stock, par
value $0.00001 per share (the “Common Stock”), equal to $57,500.00 divided by the Market Price (as defined
in the Note, as of the Issue Date), as such number may be adjusted from time to time pursuant to the terms and conditions of this
Warrant to Purchase Shares of Common Stock (this “Warrant”). This Warrant is being issued pursuant to the terms
of that certain Securities Purchase Agreement dated September 24, 2014, to which Company and Investor are parties (as the same
may be amended from time to time, the “Purchase Agreement”).
Unless
otherwise indicated herein, capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
This
Warrant was originally issued to Investor on September 24, 2014 (the “Issue Date”). For the avoidance of doubt,
the Purchase Price constitutes payment in full for this Warrant.
2. Exercise
of Warrant.
2.1. General.
(a) This
Warrant is exercisable in whole or in part at any time and from time to time commencing on the Issue Date and ending on the Expiration
Date. Such exercise shall be effectuated by submitting to Company (either by delivery to Company or by email or facsimile transmission)
a completed and duly executed Notice of Exercise substantially in the form attached to this Warrant as Exhibit A (the “Notice
of Exercise”). The date such Notice of Exercise is either faxed, emailed or delivered to Company shall be the “Exercise
Date,” provided that, if such exercise represents the full exercise of the outstanding balance of this Warrant, Investor
shall tender this Warrant to Company within five (5) Trading Days thereafter, but only if the Warrant Shares to be delivered pursuant
to the Notice of Exercise have been delivered to Investor as of such date. The Notice of Exercise shall be executed by Investor
and shall indicate (i) the number of Delivery Shares (as defined below) to be issued pursuant to such exercise, and (ii) if applicable
(as provided below), whether the exercise is a cashless exercise.
For
purposes of this Warrant, the term “Trading Day” means any day during which the principal market on which the
Common Stock is traded (the “Principal Market”) shall be open for business.
(b) Notwithstanding
any other provision contained herein or in any other Transaction Document to the contrary, at any time prior to the Expiration
Date, Investor may elect a “cashless” exercise of this Warrant for any Warrant Shares whereby Investor shall be entitled
to receive a number of shares of Common Stock equal to (i) the excess of the Current Market Value (as defined below) over the
aggregate Exercise Price of the Exercise Shares (as defined below), divided by (ii) the Adjusted Price of the Common Stock (as
defined below).
For
the purposes of this Warrant, the following terms shall have the following meanings:
“Adjusted
Price of the Common Stock” shall mean the lower of (i) the Conversion Price (as defined in the Note), as such Conversion
Price may be adjusted from time to time pursuant to the terms of the Note (solely for the purpose of determining the then-current
Conversion Price under this definition of “Adjusted Price of the Common Stock,” each cashless exercise of this Warrant
shall be deemed a conversion under the Note), and (ii) the Market Price (as defined in the Note), without regard to whether the
Note remains outstanding or has been fully repaid, cancelled or otherwise retired, on any relevant Exercise Date.
“Current
Market Value” shall mean an amount equal to the Market Price of the Common Stock (as defined below), multiplied by the
number of Exercise Shares specified in the applicable Notice of Exercise.
“Closing
Price” shall mean the 4:00 P.M. last sale price of the Common Stock on the Principal Market on the relevant Trading
Day(s), as reported by Bloomberg LP (or if that service is not then reporting the relevant information regarding the Common Stock,
a comparable reporting service of national reputation selected by Investor and reasonably acceptable to Company) (“Bloomberg”)
for the relevant date.
“Delivery
Shares” means those shares of Common Stock issuable and deliverable upon the exercise of this Warrant.
“Exercise
Price” shall mean $1.40 per share of Common Stock, as the same may be adjusted from time to time pursuant to the terms
and conditions of this Warrant.
“Exercise
Shares” shall mean those Warrant Shares subject to an exercise of the Warrant by Investor. By way of illustration only
and without limiting the foregoing, if (i) the Warrant is initially exercisable for 4,180,000 Warrant Shares and Investor has
not previously exercised the Warrant, and (ii) Investor were to make a cashless exercise with respect to 5,000 Warrant Shares
pursuant to which 6,000 Delivery Shares would be issuable to Investor, then (1) the Warrant shall be deemed to have been exercised
with respect to 5,000 Exercise Shares, (2) the Warrant would remain exercisable for 4,175,000 Warrant Shares, and (3) the Warrant
shall be deemed to have been exercised with respect to 6,000 Delivery Shares.
“Market
Price of the Common Stock” shall mean the higher of: (i) the Closing Price of the Common Stock on the Issue Date; and
(ii) the VWAP (as defined below) of the Common Stock for the Trading Day that is two (2) Trading Days prior to the Exercise Date.
“Note”
shall mean that certain Convertible Promissory Note issued by Company to Investor pursuant to the Purchase Agreement, as the same
may be amended from time to time, and including any promissory note(s) that replace or are exchanged for such referenced promissory
note.
“Transaction
Documents” or “Transaction Document” shall have the meaning set forth in the Purchase Agreement.
“VWAP”
shall mean the volume-weighted average price of the Common Stock on the Principal Market for a particular Trading Day or set of
Trading Days, as the case may be, as reported by Bloomberg.
(c) If
the Notice of Exercise form elects a “cash” exercise (or if the cashless exercise referred to in the immediately preceding
subsection (b) is not available in accordance with the terms hereof), the Exercise Price per share of Common Stock for the Delivery
Shares shall be payable, at the election of Investor, in cash or by certified or official bank check or by wire transfer in accordance
with instructions provided by Company at the request of Investor.
(d) Upon
the appropriate payment to Company, if any, of the Exercise Price for the Delivery Shares, Company shall promptly, but in no case
later than the date that is three (3) Trading Days following the date the Exercise Price is paid to Company (or with respect to
a “cashless exercise,” the date that is three (3) Trading Days following the Exercise Date) (the “Delivery
Date”), provided that the Common Stock is then DTC Eligible (as defined in the Note), deliver or cause Company’s
Transfer Agent (as defined in the Note) to deliver to Investor or its broker (as designated in the Notice of Exercise), via reputable
overnight courier, a certificate, registered in the name of Investor or its designee, representing DTC Eligible Common Stock equal
to the applicable number of Delivery Shares. If the Common Stock is not DTC Eligible at such time, such shall constitute a breach
of this Warrant (and thus an Event of Default under the Note), and Company shall instead, on or before the applicable date set
forth above in this subsection, issue and deliver to Investor or its broker (as designated in the Notice of Exercise), via reputable
overnight courier, a certificate, registered in the name of Investor or its designee, representing the applicable number of Delivery
Shares. For the avoidance of doubt, Company has not met its obligation to deliver Delivery Shares within the required timeframe
set forth above unless Investor or its broker, as applicable, has actually received the certificate representing the applicable
Delivery Shares no later than the close of business on the latest possible delivery date pursuant to the terms set forth above.
(e) If
Delivery Shares are delivered later than as required under subsection (d) immediately above, Company agrees to pay, in addition
to all other remedies available to Investor in the Transaction Documents, a late charge equal to the greater of (i) $500.00 and
(ii) 2% of the product of (1) the sum of the number of shares of Common Stock not issued to Investor on a timely basis and to
which Investor is entitled multiplied by (2) the closing bid price of the Common Stock on the Trading Day immediately preceding
the last possible date which Company could have issued such shares of Common Stock to Investor without violating this Warrant,
per Trading Day until such Delivery Shares are delivered (the “Late Fees”). Company shall pay any Late Fees
incurred under this subsection in immediately available funds upon demand; provided, however, that, at the option of Investor
(without notice to Company), such amount owed may be added to the principal amount of the Note. Furthermore, in addition to any
other remedies which may be available to Investor, in the event that Company fails for any reason to effect delivery of the Delivery
Shares as required under subsection (d) immediately above, Investor may revoke all or part of the relevant Warrant exercise by
delivery of a notice to such effect to Company, whereupon Company and Investor shall each be restored to their respective positions
immediately prior to the exercise of the relevant portion of this Warrant, except that the Late Fees described above shall be
payable through the date notice of revocation or rescission is given to Company. Finally, as liquidated damages in the event Company
fails to deliver any Delivery Shares to Investor for a period of ninety (90) days from the Delivery Date, Investor may elect,
in its sole discretion, to stop the accumulation of the Late Fees as of such date and require Company to pay to Investor a cash
amount equal to (i) the total amount of all Late Fees that have accumulated prior to the date of Investor’s election, plus
(ii) the product of the number of Delivery Shares deliverable to Investor on such date if it were to exercise this Warrant with
respect to the remaining number of Exercise Shares as of such date multiplied by the closing price of the Common Stock on the
Delivery Date (the “Cash Settlement Amount”). At such time that Investor makes an election to require Company
to pay to it the Cash Settlement Amount, such obligation of Company shall be a valid and binding obligation of Company and shall
for all purposes be deemed to be a debt obligation of Company owed to Investor as of the date it makes such election. Upon Company’s
payment of the Cash Settlement Amount to Investor, the Warrant shall be deemed to have been satisfied and Investor shall return
the original Warrant to Company for cancellation. In addition, and for the avoidance of doubt, even if Company could not deliver
the number of Delivery Shares deliverable to Investor if it were to exercise this Warrant with respect to the remaining number
of Exercise Shares on the date of repayment due to the provisions of Section 2.2, the provisions of Section 2.2 will not apply
with respect to Company’s payment of the Cash Settlement Amount.
(f) Investor
shall be deemed to be the holder of the Delivery Shares issuable to it in accordance with the provisions of this Section 2.1 on
the Exercise Date.
2.2. Ownership
Limitation. Notwithstanding anything to the contrary contained in this Warrant or the other Transaction Documents, if at any
time Investor shall or would be issued shares of Common Stock under any of the Transaction Documents, but such issuance would
cause Investor (together with its affiliates) to own a number of shares exceeding 4.99% of the number of shares of Common Stock
outstanding on such date (the “Maximum Percentage”), Company must not issue to Investor shares of the Common
Stock which would exceed the Maximum Percentage. The shares of Common Stock issuable to Investor that would cause the Maximum
Percentage to be exceeded are referred to herein as the “Ownership Limitation Shares”. Company
will reserve the Ownership Limitation Shares for the exclusive benefit of Investor. From time to time, Investor may notify Company
in writing of the number of the Ownership Limitation Shares that may be issued to Investor without causing Investor to exceed
the Maximum Percentage. Upon receipt of such notice, Company shall be unconditionally obligated to immediately issue such designated
shares to Investor, with a corresponding reduction in the number of the Ownership Limitation Shares. Notwithstanding the forgoing,
the term “4.99%” above shall be replaced with “9.99%” at such time as the Market Capitalization of the
Common Stock is less than $10,000,000.00. Notwithstanding any other provision contained herein, if the term “4.99%”
is replaced with “9.99%” pursuant to the preceding sentence, such change to “9.99%” shall be permanent.
For purposes of this Warrant, the term “Market Capitalization of the Common Stock” shall mean the product equal
to (A) the average VWAP (as defined in the Note) of the Common Stock for the immediately preceding fifteen (15) Trading Days,
multiplied by (B) the aggregate number of outstanding shares of Common Stock as reported on Company’s most recently filed
Form 10-Q or Form 10-K. By written notice to Company, Investor may increase, decrease or waive the Maximum Percentage as to itself
but any such waiver will not be effective until the 61st day after delivery thereof. The foregoing 61-day notice requirement is
enforceable, unconditional and non-waivable and shall apply to all affiliates and assigns of Investor.
3. Mutilation
or Loss of Warrant. Upon receipt by Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of reasonably satisfactory indemnification, and (in the
case of mutilation) upon surrender and cancellation of this Warrant, Company will execute and deliver to Investor a new Warrant
of like tenor and date and any such lost, stolen, destroyed or mutilated Warrant shall thereupon become void.
4. Rights
of Investor. Investor shall not, by virtue of this Warrant alone, be entitled to any rights of a stockholder in Company, either
at law or in equity, and the rights of Investor with respect to or arising under this Warrant are limited to those expressed in
this Warrant and are not enforceable against Company except to the extent set forth herein.
5. Protection
Against Dilution and Other Adjustments.
5.1. Capital
Adjustments. If Company shall at any time prior to the expiration of this Warrant subdivide the Common Stock, by split-up
or stock split, or otherwise, or combine its Common Stock, or issue additional shares of its Common Stock as a dividend, the number
of Warrant Shares issuable upon the exercise of this Warrant shall forthwith be automatically increased proportionately in the
case of a subdivision, split or stock dividend, or proportionately decreased in the case of a combination. Appropriate adjustments
shall also be made to the Exercise Price, Conversion Price (in the event of a cashless exercise), and other applicable amounts,
but the aggregate purchase price payable for the total number of Warrant Shares purchasable under this Warrant (as adjusted) shall
remain the same. Any adjustment under this Section 5.1 shall become effective automatically at the close of business on the date
the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that no record date
is fixed, upon the making of such dividend.
5.2. Reclassification,
Reorganization and Consolidation. In case of any reclassification, capital reorganization, or change in the capital stock
of Company (other than as a result of a subdivision, combination, or stock dividend provided for in Section 5.1 above), then Company
shall make appropriate provision so that Investor shall have the right at any time prior to the expiration of this Warrant to
purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and
other securities and property receivable in connection with such reclassification, reorganization, or change by a holder of the
same number of shares of Common Stock as were purchasable by Investor immediately prior to such reclassification, reorganization,
or change. In any such case appropriate provisions shall be made with respect to the rights and interest of Investor so that the
provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable
upon exercise hereof, and appropriate adjustments shall be made to the purchase price per Warrant Share payable hereunder, provided
the aggregate purchase price shall remain the same.
5.3. Subsequent
Equity Sales. If Company or any subsidiary thereof, as applicable, at any time and from time to time while this Warrant is
outstanding, shall sell or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of, sell
or issue (or announce any offer, sale, grant or any option to purchase or other disposition of) any Common Stock (including any
Common Stock issued under the Note, whether upon any type of conversion or any Deemed Issuance (as defined in the Note)), preferred
shares convertible into Common Stock, or debt, warrants, options or other instruments or securities which are convertible into
or exercisable for shares of Common Stock (together herein referred to as “Equity Securities”), at an effective
price per share less than the Exercise Price (such lower price, the “Base Share Price” and such issuance collectively,
a “Dilutive Issuance”) (if the holder of the Common Stock or Equity Securities so issued shall at any time,
whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise,
or due to warrants, options, or rights per share which are issued in connection with such issuance, be entitled to receive shares
of Common Stock at an effective price per share that is less than the Exercise Price, such issuance shall be deemed to have occurred
for less than the Exercise Price on such date of the Dilutive Issuance), then (a) the Exercise Price shall be reduced and only
reduced to equal the Base Share Price, and (b) the number of Warrant Shares issuable upon the exercise of this Warrant shall be
increased to an amount equal to the number of Warrant Shares Investor could purchase hereunder for an aggregate Exercise Price,
as reduced pursuant to subsection (a) above, equal to the aggregate Exercise Price payable immediately prior to such reduction
in Exercise Price, provided that the increase in the number of Exercise Shares issuable under to this Warrant made pursuant to
this Section 5.3 shall not at any time exceed a number equal to three (3) times the number of Exercise Shares issuable under this
Warrant as of the Issue Date (for the avoidance of doubt, the foregoing cap on the number of Exercise Shares issuable hereunder
shall only apply to adjustments made pursuant to this Section 5.3 and shall not apply to adjustments made pursuant to Sections
5.1, 5.2 or any other section of this Warrant). Such adjustments shall be made whenever such Common Stock or Equity Securities
are issued. Company shall notify Investor, in writing, no later than the Trading Day following the issuance of any Common Stock
or Equity Securities subject to this Section 5.3, indicating therein the applicable issuance price, or applicable reset price,
exchange price, conversion price, or other pricing terms (such notice, the “Dilutive Issuance Notice”).
For purposes of clarification, whether or not Company provides a Dilutive Issuance Notice pursuant to this Section 5.3, upon the
occurrence of any Dilutive Issuance, after the date of such Dilutive Issuance, Investor is entitled to receive the increased number
of Warrant Shares provided for in subsection (b) above at an Exercise Price equal to the Base Share Price regardless of whether
Investor accurately refers to the Base Share Price in the Notice of Exercise. Additionally, following the occurrence of a Dilutive
Issuance, all references in this Warrant to “Warrant Shares” shall be a reference to the Warrant Shares as increased
pursuant to subsection (b) above, and all references in this Warrant to “Exercise Price” shall be a reference to the
Exercise Price as reduced pursuant to subsection (a) above, as the same may occur from time to time hereunder.
5.4. Notice
of Adjustment. Without limiting any other provision contained herein, when any adjustment is required to be made in the number
or kind of shares purchasable upon exercise of this Warrant, or in the Exercise Price, pursuant to the terms hereof, Company shall
promptly notify Investor of such event and of the number of Warrant Shares or other securities or property thereafter purchasable
upon exercise of this Warrant.
5.5. Exceptions
to Adjustment. Notwithstanding the provisions of Sections 5.3 and 5.4, no adjustment to the Exercise Price shall be effected
as a result of an Excepted Issuance. “Excepted Issuances” shall mean, collectively, (a) Company’s issuance
of securities in connection with strategic license agreements and other partnering arrangements so long as any such issuances
are not for the purpose of raising capital and in which holders of such securities or debt are not at any time granted registration
rights, and (b) Company’s issuance of Common Stock or the issuance or grant of options to purchase Common Stock to employees,
directors, officers and consultants, authorized by Company’s board of directors pursuant to plans or agreements which are
authorized, constituted or in effect as of the Issue Date.
6. Certificate
as to Adjustments. In each case of any adjustment or readjustment in the shares of Common Stock issuable on the exercise of
this Warrant, Company at its expense will promptly cause its Chief Financial Officer or other appropriate designee to compute
such adjustment or readjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or readjustment is based, including a statement of
(a) the consideration received or receivable by Company for any additional shares of Common Stock issued or sold or deemed to
have been issued or sold, (b) the number of shares of Common Stock outstanding or deemed to be outstanding, and (c) the Exercise
Price and the number of shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to such
adjustment or readjustment and as adjusted or readjusted as provided in this Warrant. Company will forthwith mail a copy of each
such certificate to Investor and any Warrant Agent (as defined below) appointed pursuant to Section 8 hereof. Nothing in this
Section 6 shall be deemed to limit any other provision contained herein.
7. Transfer
to Comply with the Securities Act. This Warrant, and the Warrant Shares, have not been registered under the 1933 Act. None
of the Warrant Shares may be sold, transferred, pledged or hypothecated without (a) an effective registration statement under
the 1933 Act relating to such security or (b) an opinion of counsel reasonably satisfactory to Company that registration is not
required under the 1933 Act; provided, however, that the foregoing restrictions on transfer shall not apply to the transfer
of any security to an affiliate of Investor. Until such time as registration has occurred under the 1933 Act, each certificate
for this Warrant and any Warrant Shares shall contain a legend, in form and substance satisfactory to counsel for Company, setting
forth the restrictions on transfer contained in this Section 7; provided, however, that Company acknowledges and agrees
that any such legend shall be removed from all certificates for DTC Eligible Common Stock delivered hereunder as such Common Stock
is cleared and converted into electronic shares by the DTC (as defined in the Note), and nothing contained herein shall be interpreted
to the contrary. Any such transfer shall be accompanied by a transferor assignment substantially in the form attached to this
Warrant as Exhibit B (the “Transferor Assignment”), executed by the transferor and the transferee and
submitted to Company. Upon receipt of the duly executed Transferor Assignment, Company shall register the transferee thereon as
the new holder on the books and records of Company and such transferee shall be deemed a “registered holder” or “registered
assign” for all purposes hereunder, and shall have all the rights of Investor.
8. Warrant
Agent. Company may, by written notice to Investor, appoint an agent (a “Warrant Agent”) for the purpose
of issuing shares of Common Stock on the exercise of this Warrant pursuant hereto, exchanging this Warrant pursuant hereto, and
replacing this Warrant pursuant hereto, or any of the foregoing, and thereafter any such issuance, exchange or replacement, as
the case may be, shall be made at such office by such Warrant Agent.
9. Transfer
on Company’s Books. Until this Warrant is transferred on the books of Company, Company may treat Investor as the absolute
owner hereof for all purposes, notwithstanding any notice to the contrary.
10. Notices.
Any notice required or permitted hereunder shall be given in the manner provided in the subsection titled “Notices”
in the Purchase Agreement, the terms of which are incorporated herein by reference.
11. Supplements
and Amendments; Whole Agreement. This Warrant may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant, together with the Purchase Agreement and all the other Transaction Documents, taken together, contain
the full understanding of the parties hereto with respect to the subject matter hereof and thereof and there are no representations,
warranties, agreements or understandings with respect to the subject matter hereof and thereof other than as expressly contained
herein and therein.
12. Governing
Law. This Warrant shall be governed by and interpreted in accordance with the laws of the State of Utah, without giving effect
to the principles thereof regarding the conflict of laws.
13. Waiver
of Jury Trial. COMPANY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR IN ANY WAY RELATED TO THIS WARRANT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER
EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION.
FURTHER, COMPANY ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS RIGHT TO DEMAND TRIAL BY JURY.
14. Purchase
Agreement; Arbitration of Disputes. This Warrant is subject to the terms, conditions and general provisions of the Purchase
Agreement and the other Transaction Documents, including without limitation the Arbitration Provisions set forth as an Exhibit
to the Purchase Agreement.
15. Remedies.
The remedies at law of Investor under this Warrant in the event of any default or threatened default by Company in the performance
of or compliance with any of the terms of this Warrant are not and will not be adequate and, without limiting any other remedies
available to Investor in the Transaction Documents, at law or equity, to the fullest extent permitted by law, such terms may be
specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise.
16. Counterparts.
This Warrant may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the same instrument. Signatures delivered via facsimile
or email shall be considered original signatures for all purposes hereof.
17. Attorneys’
Fees. In the event of any arbitration, litigation or dispute arising from this Warrant, the parties agree that the party who
is awarded the most money shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional
award of the full amount of the attorneys’ fees and expenses paid by said prevailing party in connection with arbitration
or litigation without reduction or apportionment based upon the individual claims or defenses giving rise to the fees and expenses.
Nothing herein shall restrict or impair an arbitrator’s or a court’s power to award fees and expenses for frivolous
or bad faith pleading.
18. Severability.
Whenever possible, each provision of this Warrant shall be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Warrant shall be invalid or unenforceable in any jurisdiction, such provision shall be modified
to achieve the objective of the parties to the fullest extent permitted and such invalidity or unenforceability shall not affect
the validity or enforceability of the remainder of this Warrant or the validity or enforceability of this Warrant in any other
jurisdiction.
19. Time
of the Essence. Time is expressly made of the essence with respect to each and every provision of this Warrant.
20. Descriptive
Headings. Descriptive headings of the sections of this Warrant are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
[Remainder
of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF, Company has caused this Warrant to be duly executed by an officer thereunto duly authorized as of the Issue Date.
|
COMPANY: |
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Inception Mining
Inc. |
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By: |
/s/
Michael Ahlin |
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Printed Name: Michael Ahlin |
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Title: CEO |
[Signature
Page to Warrant]
EXHIBIT
A
NOTICE
OF EXERCISE OF WARRANT
TO: |
INCEPTION
MINING INC. |
|
ATTN:
_______________ |
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VIA
FAX TO: ( )______________ |
The
undersigned hereby irrevocably elects to exercise the right, represented by the Warrant to Purchase Shares of Common Stock dated
as of September 24, 2014 (the “Warrant”), to purchase shares of the common stock, $0.00001 par value (“Common
Stock”), of INCEPTION MINING INC., and tenders herewith payment in accordance with Section 2 of the Warrant, as follows:
_______ |
CASH: $__________________________ = (Exercise Price x Delivery Shares) |
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|
|
_______ |
Payment is being made by: |
|
|
_____
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enclosed
check |
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_____ |
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wire
transfer |
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_____ |
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other |
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_______ |
CASHLESS EXERCISE: |
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Net number of Delivery Shares to be issued to Investor: ______* |
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*
based on: |
Current
Market Value - (Exercise Price x Exercise Shares) |
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Adjusted
Price of the Common Stock |
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Where: |
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Market
Price of the Common Stock [“MP”] |
= |
$____________ |
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Exercise
Shares |
= |
_____________ |
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|
Current
Market Value [MP x Exercise Shares] |
= |
$____________ |
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Exercise
Price |
= |
$____________ |
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|
Adjusted
Price of the Common Stock |
= |
$____________ |
Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to them in the Warrant.
It
is the intention of Investor to comply with the provisions of Section 2.2 of the Warrant regarding certain limits on Investor’s
right to receive shares thereunder. Investor believes this exercise complies with the provisions of such Section 2.2. Nonetheless,
to the extent that, pursuant to the exercise effected hereby, Investor would receive more shares of Common Stock than permitted
under Section 2.2, Company shall not be obligated and shall not issue to Investor such excess shares until such time, if ever,
that Investor could receive such excess shares without violating, and in full compliance with, Section 2.2 of the Warrant.
As
contemplated by the Warrant, this Notice of Exercise is being sent by facsimile to the fax number and officer indicated above.
Exhibit A to Warrant, Page 1 |
If
this Notice of Exercise represents the full exercise of the outstanding balance of the Warrant, Investor will surrender (or cause
to be surrendered) the Warrant to Company at the address indicated above by express courier within five (5) Trading Days after
the Warrant Shares to be delivered pursuant to this Notice of Exercise have been delivered to Investor.
So
that DTC processing can begin, please deliver, via reputable overnight courier, a certificate representing DTC Eligible Common
Stock equal in number to the Delivery Shares to:
Name:
______________________________________
Address:
_____________________________________
_____________________________________
To
the extent the Delivery Shares are not DTC Eligible, please deliver a certificate representing non-DTC Eligible Common Stock equal
in number to the Delivery Shares to the party and address set forth immediately above.
Dated: |
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[Name of Investor] |
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By: |
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Exhibit A to Warrant, Page 2 |
EXHIBIT
B
FORM
OF TRANSFEROR ENDORSEMENT
(To
be signed only on transfer of the Warrant)
For
value received, the undersigned hereby sells, assigns, and transfers unto the person(s) named below under the heading “Transferees”
the right represented by the Warrant to Purchase Shares of Common Stock dated as of September 24, 2014 (the “Warrant”)
to purchase the percentage and number of shares of common stock, $0.00001 par value (“Common Stock”), of INCEPTION
MINING INC. specified under the headings “Percentage Transferred” and “Number Transferred,” respectively,
opposite the name(s) of such person(s), and appoints each such person attorney-in-fact to transfer the undersigned’s respective
right on the books of INCEPTION MINING INC. with full power of substitution.
Transferees |
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Percentage
Transferred |
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Number
Transferred |
Dated:___________,
______
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______________________________ |
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[Transferor
Name must conform to the name of Investor as specified on the face of the Warrant] |
Signed
in the presence of: |
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(Name) |
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ACCEPTED
AND AGREED: |
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[TRANSFEREE]
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Exhibit B to Warrant, Page 1 |
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