Dynaresource, Inc 8-K/A, filed Oct 24, 2024
Dynaresource, Inc. (DYNR)
8-K/A
2024-10-24
For: 2024-10-18
View Original
Added on
April 06, 2026
About this 8-K/A
Dynaresource, Inc filed this 8-K/A on October 24, 2024, reporting on events of October 18, 2024.
Items reported
- Item 1.01: Entered into a material agreement
- Item 4.01: Change of auditor
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Explanatory Note
Item 1.01 Entry into a Material Definitive Agreement.
On October 18, 2024, the Company entered into privately negotiated Stock Purchase Agreements (each an “SPA” and collectively the “SPAs”) with each of Golden Post Rail, LLC (“Golden Post”), Ocean Partners UK Limited, Gareth Nichol (“Nichol”), Ralph Whalen (“Whalen”) and Rohan Hazelton (“Hazelton”) (collectively the “Purchasers”), pursuant to which Purchasers’ acquired an aggregate of 5,769,231 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), at a purchase price of $1.04 per share, resulting in aggregate sales proceeds of $6,000,000.
In connection with the above transactions, and pursuant to the terms of the SPA entered into with Golden Post (the “Golden Post SPA”), Golden Post waived certain preemptive and antidilution rights that would otherwise have been triggered by transactions contemplated by the SPAs entered into contemporaneously with the Golden Post SPA.
The foregoing summary is qualified in its entirety by reference to the full text of the SPAs, copies of which are attached hereto as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5 respectively and incorporated herein in their entirety by reference. The SPAs contain customary representations, warranties and covenants, which were made only for purposes of the SPAs and as of specific dates, were solely for the benefit of the parties to the SPAs, and may be subject to limitations agreed upon by the contracting parties.
Item 3.02 Unregistered Sales of Equity Securities.
As discussed above, pursuant to the SPAs, on October 18, 2024 the Company issued and sold 5,760,231 shares of Common Stock to the Purchasers for a total purchase price of $6,000,000, at a price of $1.04 per share, in privately negotiated transactions exempt from registration under the Securities Act of 1933 pursuant to Section 4(a)(2).
Item 8.01 Other Events.
On October 21, 2024, the Company issued a press release announcing the closing of a private placement for $6,000,000. A copy of the press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
d)
Exhibits
Exhibit No. |
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Description |
10.1 |
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10.2 |
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10.3 |
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10.4 |
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10.5 |
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99.1 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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DYNARESOURCE, INC. |
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Date: |
October 24, 2024 |
By: |
/s/ Rohan Hazelton |
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Rohan Hazelton |
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made as of October 18, 2024, by and between DYNARESOURCE, INC., a Delaware corporation (the “Company”), and Golden Post Rail, LLC, a Texas limited liability company (“Purchaser”).
WHEREAS:
A. The Company intends to sell shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), to certain investors at a purchase price of $1.04 per share of Common Stock (the “Purchase Price”) for aggregate gross proceeds to the Company of up to $6,000,000.
B. The Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, 1,495,000 shares of Common Stock (the “Shares”) at the Purchase Price.
NOW, THEREFORE, in consideration of the foregoing premises and in reliance on the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, it is agreed as follows:
1.
PURCHASE AND SALE OF SHARES; WAIVER OF ANTIDILUTION.
1.1.
Purchase and Sale. In reliance upon the representations and warranties of the Company and Purchaser contained herein and subject to the terms and conditions set forth herein, at the Closing (as defined below), Purchaser shall purchase, and the Company shall sell and issue to Purchaser, the Shares in exchange for the Purchase Price. Upon issuance of the Shares, Purchaser shall pay the Purchase Price to the Company by wire transfer of good funds to the account specified by the Company.
1.2.
Waiver. Purchaser hereby waives (i) the preemptive rights set forth in Section 9 of the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions Thereof of Series C Senior Convertible Preferred Stock, as amended (the “Series C Designation”), (ii) the adjustments to the conversion price set forth in Section 6(d) of the Series C Designation and (iii) the adjustment to the conversion price set forth in Section 3.13 of the Securities Purchase Agreement dated as of May 6, 2015, by and among the Company, Purchaser, and K.W. Diepholz, in each case, solely as applicable to the stock issuances set forth on Schedule A hereto.
2.
CLOSING.
2.1.
Date and Time. The sale of Shares will take place at a closing (the “Closing”) at the offices of the Company or at such other place (or remotely) as the Company and Purchaser shall agree in writing on or about October 18, 2024.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to Purchaser to enter into this Agreement and to purchase the Shares, the Company represents and warrants that the following statements are true and correct in all material respects as of the date hereof and will be true and correct in all material respects at the Closing, except as expressly qualified or modified herein.
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3.1.
Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has full corporate power and authority to enter into and perform its obligations under this Agreement, and to own its properties and to carry on its business in all jurisdictions as presently conducted and as proposed to be conducted. The Company and its subsidiaries have all government and other licenses and permits and authorizations to do business in all jurisdictions where their activities require such license, permits and authorizations, except where failure to obtain any such license, permit or authorization will not have a material adverse effect on the Company’s business.
3.2.
Capitalization. As of October 18, 2024, the Company was authorized to issue 60,001,000 shares of capital stock, consisting of 40,000,000 shares of Common Stock and 20,001,000 shares of Preferred Stock (the “Preferred Stock”), of which 23,658,995 shares of Common Stock, 1,734,992 shares of Series C Preferred Stock, 760,000 shares of Series D Preferred Stock and 1,552,794 shares of Series E Preferred Stock were issued and outstanding. All outstanding shares of the Company’s capital stock have been duly authorized and validly issued, and are fully paid, non-assessable, and free of any preemptive rights, other than those certain preemptive rights set forth in the Series C Designation. There is only one class and series of Common Stock of the Company, without any special series, rights, preferences or designations assigned to any particular shares of Common Stock.
3.3.
Authorization and Enforcement. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The Company has full corporate power and authority necessary to enter into and deliver this Agreement and to perform its obligations hereunder and thereunder.
3.4.
Valid Issuance of Shares. Upon payment of the Purchase Price and issuance of the Shares, the Shares will be duly authorized, validly issued, fully paid, non-assessable and free of preemptive rights.
3.5.
No Conflict, Breach, Violation or Default; Third Party Consents. The execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Shares will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the Company’s Amended and Restated Certificate of Incorporation, as amended, or the Company’s Bylaws, both as in effect on the date hereof (collectively, the “Company Documents”), (ii) any shareholder agreement or voting agreement to which any officer, director or holder of more than 5% of the Company’s securities is a party, (iii) any statute, rule, regulation or order of any governmental agency, self-regulatory agency, securities regulatory or insurance regulatory agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its assets or properties, or (iv) any material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of its assets or properties is subject; except in the case of each of clauses (iii) and (iv), such as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect on the Company or its ability to perform its obligations hereunder. No approval of or filing with any governmental authority or other third-party entity or person is required for the Company to enter into, execute or perform this Agreement or any related transaction document.
3.6.
SEC Reports and Financial Statements.
(i)
SEC Reports. The Company has made available to Purchaser through the SEC’s EDGAR system accurate and complete copies (excluding copies of exhibits) of each report, quarterly report, annual report, current report, registration statement, and definitive proxy statement or information statement filed by the Company with the United States Securities and Exchange Commission (“SEC”) since December 31, 2022 (collectively, the “SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by the Company with the SEC have been so filed. To the Company’s Knowledge, as of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (ii) none of the SEC Reports contained any untrue statement of a material fact or
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omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii)
Financial Statements. The financial statements contained in the SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto at the time of filing and as of the date of the Closing; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements and, in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end audit adjustments which will not, individually or in the aggregate, be material in amount); and (iii) fairly present, in all material respects, the financial position of the Company as of the respective dates thereof and the results of operations of the Company for the periods covered thereby, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. All adjustments considered necessary for a fair presentation of the financial statements have been included.
(iii)
Securities Law Compliance. Assuming the accuracy of the representations and warranties of Purchaser set forth in Section 4 of this Agreement, the offer and sale of the Shares will constitute an exempted transaction under the Securities Act, and registration of the Shares is not required. The Company shall make such filings as may be necessary to comply with the federal securities laws and the “blue sky” laws of any state in connection with the offer and sale of the Shares, which filings will be made in a timely manner.
(iv)
For the purposes of this agreement, “Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company.
3.7.
Compliance with Law; No Disqualification.
(i)
OFAC. Neither the Company nor any of its affiliates or any of their respective directors, officers, employees or agents is a Person that is, or is owned or controlled by Persons that are: (A) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), or (B) located, organized or resident in a country or territory that is the subject of Sanctions. Neither the Company nor any of its affiliates has engaged in, or is now engaged in, directly or indirectly, any dealings or transactions with any Person, or in any country or territory, that, at the time of the dealing or transaction, is or was the subject of Sanctions.
(ii)
Foreign Corrupt Practices Act. Neither the Company nor any director, officer, or employee of the Company, or to the Company’s Knowledge, any other person associated with or acting on behalf of the Company, including, without limitation, any agent or affiliate of the Company has (a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or (d) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Company has instituted and maintains policies and procedures designed to ensure compliance therewith.
(iii)
No Disqualification Events. With respect to the Shares, neither the Company, nor any of its predecessors, directors, executive officers, or any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale of any Shares (each, an “Company Covered Person” and, collectively, “Company Covered Persons”) is subject to
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any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine (i) the identity of each person that is a Company Covered Person; and (ii) whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Purchaser a copy of any disclosures provided thereunder.
3.8.
No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person, as defined below, acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) in connection with the offer or sale of any of the Shares. For purposes of this Agreement, “Person” means any individual, corporation, company, limited liability company, partnership, limited liability partnership, trust, estate, proprietorship, joint venture, association, organization or entity.
4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents warrants and covenants with the Company as follows:
4.1.
Legal Power. Purchaser has the requisite power and is authorized to enter into this Agreement, to purchase the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement.
4.2.
Due Execution. This Agreement has been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3.
Access to Information. Purchaser understands that an investment in the Shares involves a high degree of risk and long term or permanent illiquidity, including, risk of loss of their entire investment. Purchaser has been given full and complete access to the Company for the purpose of obtaining such information as Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Shares. Purchaser represents that Purchaser has received and reviewed copies of the SEC Reports. Purchaser represents that Purchaser has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Shares, all as Purchaser or Purchaser’s investor’s representatives have deemed necessary to make an informed investment decision to purchase the Shares.
4.4.
Restricted Securities.
(i)
Purchaser has been advised that none of the Shares have been registered under the Securities Act or any other applicable securities laws and that the Shares are being offered and sold pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D thereunder, and that the Company’s reliance upon Section 4(a)(2) and/or Rule 506 of Regulation D is predicated in part on such Purchaser representations as contained herein. Purchaser acknowledges that the Shares will be issued as “restricted securities” as defined by Rule 144 promulgated pursuant to the Securities Act. None of the Shares may be resold in the absence of an effective registration thereof under the Securities Act and applicable state securities laws unless an applicable exemption from registration is available.
(ii)
Purchaser represents that Purchaser is acquiring the Shares for Purchaser’s own account, and not as nominee or agent, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the Securities Act, in a manner which would require registration under the Securities Act or any state securities laws.
(iii)
Purchaser understands and acknowledges that the certificates representing the Shares will bear substantially the following legend:
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“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES OR (ii) THE SECURITIES ARE SOLD PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, NO NOTICE TO OR CONSENT OF THE COMPANY SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH SALE OR TRANSFERS.”
(iv)
Purchaser acknowledges that an investment in the Shares is not liquid and is transferable only under limited conditions. Purchaser acknowledges that such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits limited resale of restricted securities subject to the satisfaction of certain conditions and that such Rule is not now available and, in the future, may not become available for resale of any of the Shares. Purchaser is an “accredited investor” as defined in Rule 501 of the Securities Act.
4.5.
Purchaser Sophistication and Ability to Bear Risk of Loss. Purchaser acknowledges that it is able to protect its interests in connection with the acquisition of the Shares and can bear the economic risk of investment in such securities without producing a material adverse change in Purchaser’s financial condition. Purchaser, either alone or with such Purchaser’s representative(s), otherwise has such knowledge and experience in financial or business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Shares.
4.6.
No Advertising. Purchaser has not received any general solicitation or advertising regarding the offer of the Shares.
4.7.
Public Statements. Purchaser agrees not to issue any public statement with respect to the offering of the Shares, Purchaser’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law.
4.8.
Confidential. Purchaser acknowledges that the information made available to Purchaser other than the SEC Reports is confidential and non-public and agrees that all such information shall be kept in confidence by Purchaser and neither used by Purchaser for Purchaser’s own benefit (other than in connection with this subscription) nor disclosed to any third party for any reason; provided, however, that (a) Purchaser may disclose such information to its affiliates and advisors who may have a need for such information in connection with providing advice to Purchaser with respect to its investment in the Company so long as such affiliates and advisors have an obligation of confidentiality, (b) this obligation shall not apply to any such information that (i) is part of the public knowledge or literature and readily accessible at the date hereof, (ii) becomes part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision), (iii) is being disclosed pursuant to a subpoena or court order or is otherwise required to be provided by law, or (iv) is received from third parties without an obligation of confidentiality (except third parties who disclose such information in violation of any confidentiality agreements or obligations, including, without limitation, any subscription or other similar agreement entered into with the Company) and (c) Purchaser may disclose such information as is necessary to enforce the terms of this Agreement.
4.9.
Exempt Offering. Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.
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5.
CONDITIONS.
5.1.
Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares. The obligation hereunder of the Company to close and issue and sell the Shares to Purchaser at the Closing is subject to the satisfaction or waiver, at or before the Closing of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in their sole discretion.
(i)
Accuracy of Purchaser’s Representations and Warranties. The representations and warranties of Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by Purchaser. Purchaser shall have performed, satisfied, and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchaser at or prior to the Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
Delivery of Purchase Price. The Purchase Price for the Shares shall be available in cleared funds and authorized by the Company and Purchaser, in their sole and absolute discretion, for distribution on the Closing in accordance with the terms hereof.
5.2.
Conditions Precedent to the Obligation of Purchaser to Close and to Purchase the Shares. The obligation hereunder of Purchaser to purchase the Shares and consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchaser’s sole benefit and may be waived by Purchaser at any time in its sole discretion.
(i)
Accuracy of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the Closing, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been initiated, against the Company, or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
(v)
Shares. At the Closing, the Company shall have delivered to Purchaser evidence of delivery of the Shares along with all appropriate board resolutions or other necessary documentation. The Company shall also deliver this Agreement, duly executed by the Company.
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6.
COVENANTS AND AGREEMENTS.
6.1.
Use of Proceeds. The Company will use the net proceeds from the sale of the Shares for a repayment of a portion of the credit facility provided to the Company by OP and for general corporate and working capital purposes. The Company agrees that, without the prior written consent of the Purchaser, the Company will not use any such proceeds (i) to redeem, repurchase or otherwise acquire, or to make any distributions in respect of, any of the Company’s securities, (ii) to repay or otherwise satisfy any indebtedness of the Company (other than the aforementioned credit facility), or (iii) for any personal, family, or household purpose.
7.
MISCELLANEOUS.
7.1.
Governing Law. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each of the parties hereto and their assigns hereby consents to the exclusive jurisdiction and venue of the Courts of the State of Delaware, and the United States District Court for the State of Delaware with respect to any matter relating to this Agreement and performance of the parties’ obligations hereunder, the documents and instruments executed and delivered concurrently herewith or pursuant hereto and performance of the parties’ obligations thereunder and each of the parties hereto hereby consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction. Any action, suit or proceeding relating to such matters shall be commenced, pursued, defended and resolved only in such courts and any appropriate appellate court having jurisdiction to hear an appeal from any judgment entered in such courts. The parties irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. Service of process in any action, suit or proceeding relating to such matters may be made and served within or outside the State of Delaware by registered or certified mail to the parties and their representatives at their respective addresses specified in Section 7.6, provided that a reasonable time, not less than thirty (30) days, is allowed for response. Service of process may also be made in such other manner as may be permissible under the applicable court rules. THE PARTIES HERETO WAIVE TRIAL BY JURY.
7.2.
Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
7.3.
Entire Agreement. This Agreement and the schedule attached hereto, and the other documents delivered pursuant hereto and thereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
7.4.
Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.5.
Amendment and Waiver. Except as otherwise provided herein, any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon each future holder of any security purchased under this Agreement and the Company.
7.6.
Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be effective when delivered personally, or sent by facsimile and in each case with a
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confirming email (with receipt confirmed), provided that a copy is mailed by registered mail, return receipt requested, or when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested) in each case to the appropriate address set forth below:
If to the Company: DynaResource, Inc.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd.
Suite 1910 North Tower
Las Colinas / Irving, TX 75039
Email:
Attention: Rohan Hazelton
With a copy to: Dentons Durham Jones Pinegar P.C.
192 East 200 North, Third Floor
St. George, UT 84770
Email: rick.guerisoli@dentons.com
Attention: Rick Guerisoli
If to the Purchaser: Golden Post Rail, LLC
1110 Post Oak Place
Westlake, Texas 76262
Email: mrose@xtiecapital.com
Attention: Matthew K. Rose
With a copy to: Haynes and Boone, LLP
2801 N. Harwood Street
Suite 2300
Dallas, TX 75201
Email: matt.fry@haynesboone.com
Attention: Matthew L. Fry
7.7.
Faxes, Electronic Mail and Counterparts. This Agreement may be executed in one or more counterparts. Delivery of an executed counterpart of the Agreement or any exhibit attached hereto by facsimile transmission or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver them in person to all other parties. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
7.8.
Expenses. Except as specifically provided herein, each party shall bear its own costs and expenses, including legal and accounting fees, in connection with this Agreement and the transactions contemplated hereunder.
7.9.
Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
7.10.
Further Assurances. At any time and from time to time after the Closing, upon reasonable request of the other, each party shall do, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances and assurances as may be reasonably required for the more complete consummation of the transactions contemplated herein.
[Signatures on following page]
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PLANO 3895654.1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
DYNARESOURCE, INC.
By: /s/ Rohan Hazelton
Name: Rohan Hazelton
Title: Chief Executive Officer
GOLDEN POST RAIL, LLC
By: /s/ Matthew K. Rose
Name: Matthew K. Rose
Title: Manager
[Signature page to Stock Purchase Agreement]
SCHEDULE A
Stock Issuances Subject to Waiver
1.
The issuance of 1,437,308 shares of Common Stock to Ocean Partners UK Limited pursuant to the Stock Purchase Agreement dated October 18, 2024, at purchase price of $1.04 per share.
2.
The issuance of 2,778,846 shares of Common Stock to Gareth Nichol pursuant to the Stock Purchase Agreement dated October 18, 2024, at a purchase price of $1.04 per share.
3.
The issuance of 48,077 shares of Common Stock to Dr. Ralph Whalen pursuant to the Stock Purchase Agreement dated October 18, 2024, at a purchase price of $1.04 per share.
4.
The issuance of 10,000 shares of Common Stock to Rohan Hazelton pursuant to the Stock Purchase Agreement dated October 18, 2024, at a purchase price of $1.04 per share.
PLANO 3895654.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made as of October 18, 2024, by and between DYNARESOURCE, INC., a Delaware corporation (the “Company”) and Ocean Partners UK Limited, a UK company (“Purchaser”).
WHEREAS:
A. The Board of Directors of the Company (the “Board of Directors”) has authorized the issuance to the Purchaser for the aggregate purchase price of $1.04 (the “Purchase Price”) 1,437,308 shares (the “Shares”) of common stock of the Company, par value $0.01 per share (the “Common Stock”).
B. The Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and in reliance on the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, it is agreed as follows:
1.
PURCHASE AND SALE OF SHARES.
1.1.
Purchase and Sale. In reliance upon the representations and warranties of the Company and Purchaser contained herein and subject to the terms and conditions set forth herein, at the Closing (as defined below), Purchaser shall purchase, and the Company shall sell and issue to Purchaser, the Shares in exchange for the Purchase Price. Upon issuance of the Shares, Purchaser shall pay the Purchase Price to the Company by wire transfer of good funds to the account specified by the Company.
2.
CLOSING.
2.1.
Date and Time. The sale of Shares will take place at a closing (the “Closing”) at the offices of the Company or at such other place (or remotely) as the Company and Purchaser shall agree in writing on or about October 18, 2024.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to Purchaser to enter into this Agreement and to purchase the Shares, the Company represents and warrants that the following statements are true and correct in all material respects as of the date hereof and will be true and correct in all material respects at Closing, except as expressly qualified or modified herein.
3.1.
Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has full corporate power and authority to enter into and perform its obligations under this Agreement, and to own its properties and to carry on its business in all jurisdictions as presently conducted and as proposed to be conducted. The Company and its subsidiaries have all government and other licenses and permits and authorizations to do business in all jurisdictions where their activities require such license, permits and authorizations, except where failure to obtain any such license, permit or authorization will not have a material adverse effect on the Company’s business.
1
3.2.
Capitalization. As of October 18, 2024, the Company was authorized to issue 60,001,000 shares of capital stock, consisting of 40,000,000 shares of Common Stock and 20,001,000 shares of Preferred Stock (the “Preferred Stock”), of which 23,658,995 shares of Common Stock, 1,734,992 shares of Series C Preferred Stock, 760,000 shares of Series D Preferred Stock and 1,552,794 shares of Series E Preferred Stock were issued and outstanding. All outstanding shares of the Company’s capital stock have been duly authorized and validly issued, and are fully paid, non-assessable, and free of any pre-emptive rights, other than those certain preemptive rights set forth in the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock, as amended (the “Series C Designation”). There is only one class and series of Common Stock of the Company, without any special series, rights, preferences or designations assigned to any particular shares of Common Stock.
3.3.
Authorization and Enforcement. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The Company has full corporate power and authority necessary to enter into and deliver this Agreement and to perform its obligations hereunder and thereunder.
3.4.
Reservation and Valid Issuance of Shares. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, upon payment of the Purchase Price and issuance of the Shares, the Shares will be duly authorized, validly issued, fully paid, non-assessable and free of pre-emptive rights.
3.5.
No Conflict, Breach, Violation or Default; Third Party Consents. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, the execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Shares will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the Company’s Amended and Restated Certificate of Incorporation, as amended, or the Company’s Bylaws, both as in effect on the date hereof (collectively, the “Company Documents”), (ii) any shareholder agreement or voting agreement to which any officer, director or holder of more than 5% of the Company’s securities is a party to, (iii) any statute, rule, regulation or order of any governmental agency, self-regulatory agency, securities regulatory or insurance regulatory agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its assets or properties, or (iv) any material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of its assets or properties is subject; except in the case of each of clauses (iii) and (iv), such as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect on the Company or its ability to perform its obligations hereunder. No approval of or filing with any governmental authority or other third-party entity or person is required for the Company to enter into, execute or perform this Agreement or any related transaction document.
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3.6.
SEC Reports and Financial Statements.
(i)
SEC Reports. The Company has made available to Purchaser through the SEC’s EDGAR system accurate and complete copies (excluding copies of exhibits) of each report, quarterly report, annual report, current report, registration statement, and definitive proxy statement or information statement filed by the Company with the United States Securities and Exchange Commission (“SEC”) since December 31, 2022 (collectively, the “SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by the Company with the SEC have been so filed. To the Company’s Knowledge, as of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (ii) none of the SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii)
Financial Statements. The financial statements contained in the SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto at the time of filing and as of the date of the Closing; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements and, in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end audit adjustments which will not, individually or in the aggregate, be material in amount); and (iii) fairly present, in all material respects, the financial position of the Company as of the respective dates thereof and the results of operations of the Company for the periods covered thereby, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. All adjustments considered necessary for a fair presentation of the financial statements have been included.
(iii)
Securities Law Compliance. Assuming the accuracy of the representations and warranties of Purchaser, set forth in Section 4 of this Agreement, the offer and sale of the Shares will constitute an exempted transaction under the Securities Act, and registration of the Shares is not required. The Company shall make such filings as may be necessary to comply with the federal securities laws and the “blue sky” laws of any state in connection with the offer and sale of the Shares, which filings will be made in a timely manner.
(iv)
For the purposes of this agreement, “Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company.
3.7.
Compliance with Law; No Disqualification.
(i)
OFAC. Neither the Company nor any of its affiliates or any of their respective directors, officers, employees or agents is a Person that is, or is owned or controlled by Persons that are: (A) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), or (B) located, organized or resident in a country or territory that is the subject of Sanctions. Neither the Company nor any of its affiliates has engaged in, or is now engaged in, directly or indirectly, any dealings or transactions with any Person, or in any country or territory, that, at the time of the dealing or transaction, is or was the subject of Sanctions.
(ii)
Foreign Corrupt Practices Act. Neither the Company nor any director, officer, or employee of the Company, or to the Company’s Knowledge, any other person associated with or acting on behalf of the Company, including, without limitation, any agent or affiliate of the Company
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PLANO 3895654.1
has (a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or (d) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Company has instituted and maintains policies and procedures designed to ensure compliance therewith.
(iii)
No Disqualification Events. With respect to the Shares, neither the Company, nor any of its predecessors, directors, executive officers, or any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale of any Sales (each, an “Company Covered Person” and, collectively, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine (i) the identity of each person that is a Company Covered Person; and (ii) whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Purchaser a copy of any disclosures provided thereunder.
3.8.
No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person, as defined below, acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) in connection with the offer or sale of any of the Shares. For purposes of this Agreement, “Person” means any individual, corporation, company, limited liability company, partnership, limited liability partnership, trust, estate, proprietorship, joint venture, association, organization or entity.
4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents warrants and covenants with the Company as follows:
4.1.
Legal Power. As applicable, Purchaser has the requisite power and is authorized to enter into this Agreement, to purchase the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement.
4.2.
Due Execution. This Agreement has been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3.
Access to Information. Purchaser understands that an investment in the Shares involves a high degree of risk and long term or permanent illiquidity, including, risk of loss of their entire investment. Purchaser has been given full and complete access to the Company for the purpose of obtaining such information as Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Shares. Purchaser represents that Purchaser has received and reviewed copies of the SEC Reports. Purchaser represents that Purchaser has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Shares, all as Purchaser or Purchaser’s investor’s representatives have deemed necessary to make an informed investment decision to purchase the Shares.
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PLANO 3895654.1
4.4.
Restricted Securities.
(i)
Purchaser has been advised that none of the Shares have been registered under the Securities Act or any other applicable securities laws and that the Shares are being offered and sold pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D thereunder, and that the Company’s reliance upon Section 4(a)(2) and/or Rule 506 of Regulation D is predicated in part on such Purchaser representations as contained herein. Purchaser acknowledges that the Shares will be issued as “restricted securities” as defined by Rule 144 promulgated pursuant to the Securities Act. None of the Shares may be resold in the absence of an effective registration thereof under the Securities Act and applicable state securities laws unless, in the opinion of counsel reasonably satisfactory to the Company, an applicable exemption from registration is available.
(ii)
Purchaser represents that Purchaser is acquiring the Shares for Purchaser’s own account, and not as nominee or agent, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the Securities Act, in a manner which would require registration under the Securities Act or any state securities laws.
(iii)
Purchaser understands and acknowledges that the certificates representing the Shares will bear substantially the following legend:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES OR (ii) THE SECURITIES ARE SOLD PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, NO NOTICE TO OR CONSENT OF THE COMPANY SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH SALE OR TRANSFERS.”
(iv)
Purchaser acknowledges that an investment in the Shares is not liquid and is transferable only under limited conditions. Purchaser acknowledges that such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits limited resale of restricted securities subject to the satisfaction of certain conditions and that such Rule is not now available and, in the future, may not become available for resale of any of the Shares. Purchaser is an “accredited investor” as defined in Rule 501 of the Securities Act.
4.5.
Purchaser Sophistication and Ability to Bear Risk of Loss. Purchaser acknowledges that it is able to protect its interests in connection with the acquisition of the Shares and can bear the economic risk of investment in such securities without producing a material adverse change in Purchaser’s financial condition. Purchaser, either alone or with such Purchaser’s representative(s), otherwise has such knowledge and experience in financial or business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Shares.
4.6.
No Advertising. Purchaser has not received any general solicitation or advertising regarding the offer of the Shares.
4.7.
Public Statements. Purchaser agrees not to issue any public statement with respect to the offering of the Shares, Purchaser’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law.
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4.8.
Confidential. Purchaser acknowledges that the information made available to Purchaser other than the SEC Reports is confidential and non-public and agrees that all such information shall be kept in confidence by Purchaser and neither used by Purchaser for Purchaser’s own benefit (other than in connection with this subscription) nor disclosed to any third party for any reason; provided, however, that (a) Purchaser may disclose such information to its affiliates and advisors who may have a need for such information in connection with providing advice to Purchaser with respect to its investment in the Company so long as such affiliates and advisors have an obligation of confidentiality, (b) this obligation shall not apply to any such information that (i) is part of the public knowledge or literature and readily accessible at the date hereof, (ii) becomes part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision), (iii) is being disclosed pursuant to a subpoena or court order or is otherwise required to be provided by law, or (iv) is received from third parties without an obligation of confidentiality (except third parties who disclose such information in violation of any confidentiality agreements or obligations, including, without limitation, any subscription or other similar agreement entered into with the Company) and (c) Purchaser may disclose such information as is necessary to enforce the terms of this Agreement.
4.9.
Exempt Offering. Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.
5.
CONDITIONS.
5.1.
Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares. The obligation hereunder of the Company to close and issue and sell the Shares to Purchaser at the Closing is subject to the satisfaction or waiver, at or before such Closing of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in their sole discretion.
(i)
Accuracy of Purchaser’s Representations and Warranties. The representations and warranties of Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by Purchaser. Purchaser shall have performed, satisfied, and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchaser at or prior to the Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
Delivery of Purchase Price. The Purchase Price for the Shares shall be available in cleared funds and authorized by the Company and Purchaser, in their sole and absolute discretion, for distribution on the Closing in accordance with the terms hereof.
5.2.
Conditions Precedent to the Obligation of Purchaser to Close and to Purchase the Shares. The obligation hereunder of Purchaser to purchase the Shares and consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchaser’s sole benefit and may be waived by Purchaser at any time in its sole discretion.
(i)
Accuracy of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material
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PLANO 3895654.1
respects as of the Closing, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to such Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been initiated, against the Company, or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
(v)
Shares. At the Closing, the Company shall have delivered to Purchaser evidence of delivery of the Shares along with all appropriate board resolutions or other necessary documentation. The Company shall also deliver this Agreement, duly executed by the Company.
6.
COVENANTS AND AGREEMENTS
6.1.
Use of Proceeds. The Company will use the net proceeds from the sale of the Shares for a repayment of a portion of the credit facility provided to the Company, and for general corporate and working capital purposes. The Company agrees that, without the prior written consent of the Purchaser, the Company will not use any such proceeds (i) to redeem, repurchase or otherwise acquire, or to make any distributions in respect of, any of the Company’s securities, (ii) to repay or otherwise satisfy any indebtedness of the Company (other than the aforementioned credit facility), or (iii) for any personal, family, or household purpose.
7.
MISCELLANEOUS.
7.1.
Governing Law. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each of the parties hereto and their assigns hereby consents to the exclusive jurisdiction and venue of the Courts of the State of Delaware, and the United States District Court for the State of Delaware with respect to any matter relating to this Agreement and performance of the parties’ obligations hereunder, the documents and instruments executed and delivered concurrently herewith or pursuant hereto and performance of the parties’ obligations thereunder and each of the parties hereto hereby consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction. Any action, suit or proceeding relating to such matters shall be commenced, pursued, defended and resolved only in such courts and any appropriate appellate court having jurisdiction to hear an appeal from any judgment entered in such courts. The parties irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. Service of process in any action, suit or proceeding relating to such matters may be made and served within or outside the State of Delaware by registered or certified mail to the parties and their representatives at their respective addresses specified in Section 7.6, provided that a reasonable time, not less than thirty (30) days, is allowed for response. Service of process may also be made in such other manner as may be permissible under the applicable court rules. THE PARTIES HERETO WAIVE TRIAL BY JURY.
7.2.
Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
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7.3.
Entire Agreement. This Agreement and the Exhibit attached hereto, and the other documents delivered pursuant hereto and thereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
7.4.
Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.5.
Amendment and Waiver. Except as otherwise provided herein, any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon each future holder of any security purchased under this Agreement and the Company.
7.6.
Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be effective when delivered personally, or sent by facsimile and in each case with a confirming email (with receipt confirmed), provided that a copy is mailed by registered mail, return receipt requested, or when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested) in each case to the appropriate address set forth below:
If to the Company: DynaResource, Inc.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd.
Suite 1910 North Tower
Las Colinas / Irving, TX 75039
Email: rhazelton@dynaresource.com
Attention: Rohan Hazelton
With a copy to: Dentons Durham Jones Pinegar P.C.
192 East 200 North, Third Floor
St. George, UT 84770
Email: rick.guerisoli@dentons.com
Attention: Rick Guerisoli
If to the Purchaser: Ocean Partners UK Limited
Email:
Attention: Brent Omland
With a copy to:
Email:
Attention:
7.7.
Faxes, Electronic Mail and Counterparts. This Agreement may be executed in one or more counterparts. Delivery of an executed counterpart of the Agreement or any exhibit attached hereto by facsimile transmission or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all
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manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver them in person to all other parties. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
7.8.
Expenses. Except as specifically provided herein, each party shall bear its own costs and expenses, including legal and accounting fees, in connection with this Agreement and the transactions contemplated hereunder.
7.9.
Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
7.10.
Further Assurances. At any time and from time to time after the Closing, upon reasonable request of the other, each party shall do, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances and assurances as may be reasonably required for the more complete consummation of the transactions contemplated herein.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
DYNARESOURCE, INC.
By: /s/ Rohan hazelton
Name: Rohan hazelton
Title: Chief Executive Officer
Ocean Partners UK Limited
By: /s/ Siva Pillay
Name: Siva Pillay
Title: Director
[Signature page to Stock Purchase Agreement]
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made as of October 18, 2024, by and between DYNARESOURCE, INC., a Delaware corporation (the “Company”) and Gareth Nichol (“Purchaser”).
WHEREAS:
A. The Board of Directors of the Company (the “Board of Directors”) has authorized the issuance to the Purchaser for the aggregate purchase price of $1.04 (the “Purchase Price”) 2,778,846 shares (the “Shares”) of common stock of the Company, par value $0.01 per share (the “Common Stock”).
B. The Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and in reliance on the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, it is agreed as follows:
1.
PURCHASE AND SALE OF SHARES.
1.1.
Purchase and Sale. In reliance upon the representations and warranties of the Company and Purchaser contained herein and subject to the terms and conditions set forth herein, at the Closing (as defined below), Purchaser shall purchase, and the Company shall sell and issue to Purchaser, the Shares in exchange for the Purchase Price. Upon issuance of the Shares, Purchaser shall pay the Purchase Price to the Company by wire transfer of good funds to the account specified by the Company.
2.
CLOSING.
2.1.
Date and Time. The sale of Shares will take place at a closing (the “Closing”) at the offices of the Company or at such other place (or remotely) as the Company and Purchaser shall agree in writing on or about October 18, 2024.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to Purchaser to enter into this Agreement and to purchase the Shares, the Company represents and warrants that the following statements are true and correct in all material respects as of the date hereof and will be true and correct in all material respects at Closing, except as expressly qualified or modified herein.
3.1.
Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has full corporate power and authority to enter into and perform its obligations under this Agreement, and to own its properties and to carry on its business in all jurisdictions as presently conducted and as proposed to be conducted. The Company and its subsidiaries have all government and other licenses and permits and authorizations to do business in all jurisdictions where their activities require such license, permits and authorizations, except where failure to obtain any such license, permit or authorization will not have a material adverse effect on the Company’s business.
3.2.
Capitalization. As of August 19, 2024, the Company was authorized to issue 60,001,000 shares of capital stock, consisting of 40,000,000 shares of Common Stock and 20,001,000 shares of
1
Preferred Stock (the “Preferred Stock”), of which 23,658,995 shares of Common Stock, 1,734,992 shares of Series C Preferred Stock, 760,000 shares of Series D Preferred Stock and 1,552,794 shares of Series E Preferred Stock were issued and outstanding. All outstanding shares of the Company’s capital stock have been duly authorized and validly issued, and are fully paid, non-assessable, and free of any pre-emptive rights, other than those certain preemptive rights set forth in the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock, as amended (the “Series C Designation”). There is only one class and series of Common Stock of the Company, without any special series, rights, preferences or designations assigned to any particular shares of Common Stock.
3.3.
Authorization and Enforcement. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The Company has full corporate power and authority necessary to enter into and deliver this Agreement and to perform its obligations hereunder and thereunder.
3.4.
Reservation and Valid Issuance of Shares. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, upon payment of the Purchase Price and issuance of the Shares, the Shares will be duly authorized, validly issued, fully paid, non-assessable and free of pre-emptive rights.
3.5.
No Conflict, Breach, Violation or Default; Third Party Consents. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, the execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Shares will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the Company’s Amended and Restated Certificate of Incorporation, as amended, or the Company’s Bylaws, both as in effect on the date hereof (collectively, the “Company Documents”), (ii) any shareholder agreement or voting agreement to which any officer, director or holder of more than 5% of the Company’s securities is a party to, (iii) any statute, rule, regulation or order of any governmental agency, self-regulatory agency, securities regulatory or insurance regulatory agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its assets or properties, or (iv) any material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of its assets or properties is subject; except in the case of each of clauses (iii) and (iv), such as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect on the Company or its ability to perform its obligations hereunder. No approval of or filing with any governmental authority or other third-party entity or person is required for the Company to enter into, execute or perform this Agreement or any related transaction document.
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3.6.
SEC Reports and Financial Statements.
(i)
SEC Reports. The Company has made available to Purchaser through the SEC’s EDGAR system accurate and complete copies (excluding copies of exhibits) of each report, quarterly report, annual report, current report, registration statement, and definitive proxy statement or information statement filed by the Company with the United States Securities and Exchange Commission (“SEC”) since December 31, 2022 (collectively, the “SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by the Company with the SEC have been so filed. To the Company’s Knowledge, as of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (ii) none of the SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii)
Financial Statements. The financial statements contained in the SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto at the time of filing and as of the date of the Closing; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements and, in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end audit adjustments which will not, individually or in the aggregate, be material in amount); and (iii) fairly present, in all material respects, the financial position of the Company as of the respective dates thereof and the results of operations of the Company for the periods covered thereby, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. All adjustments considered necessary for a fair presentation of the financial statements have been included.
(iii)
Securities Law Compliance. Assuming the accuracy of the representations and warranties of Purchaser, set forth in Section 4 of this Agreement, the offer and sale of the Shares will constitute an exempted transaction under the Securities Act, and registration of the Shares is not required. The Company shall make such filings as may be necessary to comply with the federal securities laws and the “blue sky” laws of any state in connection with the offer and sale of the Shares, which filings will be made in a timely manner.
(iv)
For the purposes of this agreement, “Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company.
3.7.
Compliance with Law; No Disqualification.
(i)
OFAC. Neither the Company nor any of its affiliates or any of their respective directors, officers, employees or agents is a Person that is, or is owned or controlled by Persons that are: (A) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), or (B) located, organized or resident in a country or territory that is the subject of Sanctions. Neither the Company nor any of its affiliates has engaged in, or is now engaged in, directly or indirectly, any dealings or transactions with any Person, or in any country or territory, that, at the time of the dealing or transaction, is or was the subject of Sanctions.
(ii)
Foreign Corrupt Practices Act. Neither the Company nor any director, officer, or employee of the Company, or to the Company’s Knowledge, any other person associated with or acting on behalf of the Company, including, without limitation, any agent or affiliate of the Company
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has (a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or (d) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Company has instituted and maintains policies and procedures designed to ensure compliance therewith.
(iii)
No Disqualification Events. With respect to the Shares, neither the Company, nor any of its predecessors, directors, executive officers, or any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale of any Sales (each, an “Company Covered Person” and, collectively, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine (i) the identity of each person that is a Company Covered Person; and (ii) whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Purchaser a copy of any disclosures provided thereunder.
3.8.
No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person, as defined below, acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) in connection with the offer or sale of any of the Shares. For purposes of this Agreement, “Person” means any individual, corporation, company, limited liability company, partnership, limited liability partnership, trust, estate, proprietorship, joint venture, association, organization or entity.
4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents warrants and covenants with the Company as follows:
4.1.
Legal Power. As applicable, Purchaser has the requisite power and is authorized to enter into this Agreement, to purchase the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement.
4.2.
Due Execution. This Agreement has been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3.
Access to Information. Purchaser understands that an investment in the Shares involves a high degree of risk and long term or permanent illiquidity, including, risk of loss of their entire investment. Purchaser has been given full and complete access to the Company for the purpose of obtaining such information as Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Shares. Purchaser represents that Purchaser has received and reviewed copies of the SEC Reports. Purchaser represents that Purchaser has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Shares, all as Purchaser or Purchaser’s investor’s representatives have deemed necessary to make an informed investment decision to purchase the Shares.
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4.4.
Restricted Securities.
(i)
Purchaser has been advised that none of the Shares have been registered under the Securities Act or any other applicable securities laws and that the Shares are being offered and sold pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D thereunder, and that the Company’s reliance upon Section 4(a)(2) and/or Rule 506 of Regulation D is predicated in part on such Purchaser representations as contained herein. Purchaser acknowledges that the Shares will be issued as “restricted securities” as defined by Rule 144 promulgated pursuant to the Securities Act. None of the Shares may be resold in the absence of an effective registration thereof under the Securities Act and applicable state securities laws unless, in the opinion of counsel reasonably satisfactory to the Company, an applicable exemption from registration is available.
(ii)
Purchaser represents that Purchaser is acquiring the Shares for Purchaser’s own account, and not as nominee or agent, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the Securities Act, in a manner which would require registration under the Securities Act or any state securities laws.
(iii)
Purchaser understands and acknowledges that the certificates representing the Shares will bear substantially the following legend:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES OR (ii) THE SECURITIES ARE SOLD PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, NO NOTICE TO OR CONSENT OF THE COMPANY SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH SALE OR TRANSFERS.”
(iv)
Purchaser acknowledges that an investment in the Shares is not liquid and is transferable only under limited conditions. Purchaser acknowledges that such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits limited resale of restricted securities subject to the satisfaction of certain conditions and that such Rule is not now available and, in the future, may not become available for resale of any of the Shares. Purchaser is an “accredited investor” as defined in Rule 501 of the Securities Act.
4.5.
Purchaser Sophistication and Ability to Bear Risk of Loss. Purchaser acknowledges that it is able to protect its interests in connection with the acquisition of the Shares and can bear the economic risk of investment in such securities without producing a material adverse change in Purchaser’s financial condition. Purchaser, either alone or with such Purchaser’s representative(s), otherwise has such knowledge and experience in financial or business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Shares.
4.6.
No Advertising. Purchaser has not received any general solicitation or advertising regarding the offer of the Shares.
4.7.
Public Statements. Purchaser agrees not to issue any public statement with respect to the offering of the Shares, Purchaser’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law.
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4.8.
Confidential. Purchaser acknowledges that the information made available to Purchaser other than the SEC Reports is confidential and non-public and agrees that all such information shall be kept in confidence by Purchaser and neither used by Purchaser for Purchaser’s own benefit (other than in connection with this subscription) nor disclosed to any third party for any reason; provided, however, that (a) Purchaser may disclose such information to its affiliates and advisors who may have a need for such information in connection with providing advice to Purchaser with respect to its investment in the Company so long as such affiliates and advisors have an obligation of confidentiality, (b) this obligation shall not apply to any such information that (i) is part of the public knowledge or literature and readily accessible at the date hereof, (ii) becomes part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision), (iii) is being disclosed pursuant to a subpoena or court order or is otherwise required to be provided by law, or (iv) is received from third parties without an obligation of confidentiality (except third parties who disclose such information in violation of any confidentiality agreements or obligations, including, without limitation, any subscription or other similar agreement entered into with the Company) and (c) Purchaser may disclose such information as is necessary to enforce the terms of this Agreement.
4.9.
Exempt Offering. Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.
5.
CONDITIONS.
5.1.
Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares. The obligation hereunder of the Company to close and issue and sell the Shares to Purchaser at the Closing is subject to the satisfaction or waiver, at or before such Closing of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in their sole discretion.
(i)
Accuracy of Purchaser’s Representations and Warranties. The representations and warranties of Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by Purchaser. Purchaser shall have performed, satisfied, and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchaser at or prior to the Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
Delivery of Purchase Price. The Purchase Price for the Shares shall be available in cleared funds and authorized by the Company and Purchaser, in their sole and absolute discretion, for distribution on the Closing in accordance with the terms hereof.
5.2.
Conditions Precedent to the Obligation of Purchaser to Close and to Purchase the Shares. The obligation hereunder of Purchaser to purchase the Shares and consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchaser’s sole benefit and may be waived by Purchaser at any time in its sole discretion.
(i)
Accuracy of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material
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respects as of the Closing, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to such Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been initiated, against the Company, or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
(v)
Shares. At the Closing, the Company shall have delivered to Purchaser evidence of delivery of the Shares along with all appropriate board resolutions or other necessary documentation. The Company shall also deliver this Agreement, duly executed by the Company.
6.
COVENANTS AND AGREEMENTS
6.1.
Use of Proceeds. The Company will use the net proceeds from the sale of the Shares for a repayment of a portion of the credit facility provided to the Company, and for general corporate and working capital purposes. The Company agrees that, without the prior written consent of the Purchaser, the Company will not use any such proceeds (i) to redeem, repurchase or otherwise acquire, or to make any distributions in respect of, any of the Company’s securities, (ii) to repay or otherwise satisfy any indebtedness of the Company (other than the aforementioned credit facility), or (iii) for any personal, family, or household purpose.
7.
MISCELLANEOUS.
7.1.
Governing Law. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each of the parties hereto and their assigns hereby consents to the exclusive jurisdiction and venue of the Courts of the State of Delaware, and the United States District Court for the State of Delaware with respect to any matter relating to this Agreement and performance of the parties’ obligations hereunder, the documents and instruments executed and delivered concurrently herewith or pursuant hereto and performance of the parties’ obligations thereunder and each of the parties hereto hereby consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction. Any action, suit or proceeding relating to such matters shall be commenced, pursued, defended and resolved only in such courts and any appropriate appellate court having jurisdiction to hear an appeal from any judgment entered in such courts. The parties irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. Service of process in any action, suit or proceeding relating to such matters may be made and served within or outside the State of Delaware by registered or certified mail to the parties and their representatives at their respective addresses specified in Section 7.6, provided that a reasonable time, not less than thirty (30) days, is allowed for response. Service of process may also be made in such other manner as may be permissible under the applicable court rules. THE PARTIES HERETO WAIVE TRIAL BY JURY.
7.2.
Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
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7.3.
Entire Agreement. This Agreement and the Exhibit attached hereto, and the other documents delivered pursuant hereto and thereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
7.4.
Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.5.
Amendment and Waiver. Except as otherwise provided herein, any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon each future holder of any security purchased under this Agreement and the Company.
7.6.
Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be effective when delivered personally, or sent by facsimile and in each case with a confirming email (with receipt confirmed), provided that a copy is mailed by registered mail, return receipt requested, or when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested) in each case to the appropriate address set forth below:
If to the Company: DynaResource, Inc.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd.
Suite 1910 North Tower
Las Colinas / Irving, TX 75039
Email: rhazelton@dynaresource.com
Attention: Rohan Hazelton
With a copy to: Dentons Durham Jones Pinegar P.C.
192 East 200 North, Third Floor
St. George, UT 84770
Email: rick.guerisoli@dentons.com
Attention: Rick Guerisoli
If to the Purchaser: Gareth Nichol
Email:
Attention:
With a copy to:
Email:
Attention:
7.7.
Faxes, Electronic Mail and Counterparts. This Agreement may be executed in one or more counterparts. Delivery of an executed counterpart of the Agreement or any exhibit attached hereto by facsimile transmission or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all
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manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver them in person to all other parties. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
7.8.
Expenses. Except as specifically provided herein, each party shall bear its own costs and expenses, including legal and accounting fees, in connection with this Agreement and the transactions contemplated hereunder.
7.9.
Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
7.10.
Further Assurances. At any time and from time to time after the Closing, upon reasonable request of the other, each party shall do, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances and assurances as may be reasonably required for the more complete consummation of the transactions contemplated herein.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
DYNARESOURCE, INC.
By: /s/ Rohan Hazelton
Name: Rohan Hazelton
Title: Chief Executive Officer
By: /s/ Gareth Nichol
Name: Gareth Nichol
Title: Individual Investor
[Signature page to Stock Purchase Agreement]
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made as of October 18, 2024, by and between DYNARESOURCE, INC., a Delaware corporation (the “Company”) and Dr. Ralph Whalen (“Purchaser”).
WHEREAS:
A. The Board of Directors of the Company (the “Board of Directors”) has authorized the issuance to the Purchaser for the aggregate purchase price of $1.04 (the “Purchase Price”) 48,077 shares (the “Shares”) of common stock of the Company, par value $0.01 per share (the “Common Stock”).
B. The Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and in reliance on the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, it is agreed as follows:
1.
PURCHASE AND SALE OF SHARES.
1.1.
Purchase and Sale. In reliance upon the representations and warranties of the Company and Purchaser contained herein and subject to the terms and conditions set forth herein, at the Closing (as defined below), Purchaser shall purchase, and the Company shall sell and issue to Purchaser, the Shares in exchange for the Purchase Price. Upon issuance of the Shares, Purchaser shall pay the Purchase Price to the Company by wire transfer of good funds to the account specified by the Company.
2.
CLOSING.
2.1.
Date and Time. The sale of Shares will take place at a closing (the “Closing”) at the offices of the Company or at such other place (or remotely) as the Company and Purchaser shall agree in writing on or about October 18, 2024.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to Purchaser to enter into this Agreement and to purchase the Shares, the Company represents and warrants that the following statements are true and correct in all material respects as of the date hereof and will be true and correct in all material respects at Closing, except as expressly qualified or modified herein.
3.1.
Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has full corporate power and authority to enter into and perform its obligations under this Agreement, and to own its properties and to carry on its business in all jurisdictions as presently conducted and as proposed to be conducted. The Company and its subsidiaries have all government and other licenses and permits and authorizations to do business in all jurisdictions where their activities require such license, permits and authorizations, except where failure to obtain any such license, permit or authorization will not have a material adverse effect on the Company’s business.
3.2.
Capitalization. As of August 19, 2024, the Company was authorized to issue 60,001,000 shares of capital stock, consisting of 40,000,000 shares of Common Stock and 20,001,000 shares of
1
Preferred Stock (the “Preferred Stock”), of which 23,658,995 shares of Common Stock, 1,734,992 shares of Series C Preferred Stock, 760,000 shares of Series D Preferred Stock and 1,552,794 shares of Series E Preferred Stock were issued and outstanding. All outstanding shares of the Company’s capital stock have been duly authorized and validly issued, and are fully paid, non-assessable, and free of any pre-emptive rights, other than those certain preemptive rights set forth in the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock, as amended (the “Series C Designation”). There is only one class and series of Common Stock of the Company, without any special series, rights, preferences or designations assigned to any particular shares of Common Stock.
3.3.
Authorization and Enforcement. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The Company has full corporate power and authority necessary to enter into and deliver this Agreement and to perform its obligations hereunder and thereunder.
3.4.
Reservation and Valid Issuance of Shares. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, upon payment of the Purchase Price and issuance of the Shares, the Shares will be duly authorized, validly issued, fully paid, non-assessable and free of pre-emptive rights.
3.5.
No Conflict, Breach, Violation or Default; Third Party Consents. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, the execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Shares will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the Company’s Amended and Restated Certificate of Incorporation, as amended, or the Company’s Bylaws, both as in effect on the date hereof (collectively, the “Company Documents”), (ii) any shareholder agreement or voting agreement to which any officer, director or holder of more than 5% of the Company’s securities is a party to, (iii) any statute, rule, regulation or order of any governmental agency, self-regulatory agency, securities regulatory or insurance regulatory agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its assets or properties, or (iv) any material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of its assets or properties is subject; except in the case of each of clauses (iii) and (iv), such as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect on the Company or its ability to perform its obligations hereunder. No approval of or filing with any governmental authority or other third-party entity or person is required for the Company to enter into, execute or perform this Agreement or any related transaction document.
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3.6.
SEC Reports and Financial Statements.
(i)
SEC Reports. The Company has made available to Purchaser through the SEC’s EDGAR system accurate and complete copies (excluding copies of exhibits) of each report, quarterly report, annual report, current report, registration statement, and definitive proxy statement or information statement filed by the Company with the United States Securities and Exchange Commission (“SEC”) since December 31, 2022 (collectively, the “SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by the Company with the SEC have been so filed. To the Company’s Knowledge, as of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (ii) none of the SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii)
Financial Statements. The financial statements contained in the SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto at the time of filing and as of the date of the Closing; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements and, in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end audit adjustments which will not, individually or in the aggregate, be material in amount); and (iii) fairly present, in all material respects, the financial position of the Company as of the respective dates thereof and the results of operations of the Company for the periods covered thereby, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. All adjustments considered necessary for a fair presentation of the financial statements have been included.
(iii)
Securities Law Compliance. Assuming the accuracy of the representations and warranties of Purchaser, set forth in Section 4 of this Agreement, the offer and sale of the Shares will constitute an exempted transaction under the Securities Act, and registration of the Shares is not required. The Company shall make such filings as may be necessary to comply with the federal securities laws and the “blue sky” laws of any state in connection with the offer and sale of the Shares, which filings will be made in a timely manner.
(iv)
For the purposes of this agreement, “Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company.
3.7.
Compliance with Law; No Disqualification.
(i)
OFAC. Neither the Company nor any of its affiliates or any of their respective directors, officers, employees or agents is a Person that is, or is owned or controlled by Persons that are: (A) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), or (B) located, organized or resident in a country or territory that is the subject of Sanctions. Neither the Company nor any of its affiliates has engaged in, or is now engaged in, directly or indirectly, any dealings or transactions with any Person, or in any country or territory, that, at the time of the dealing or transaction, is or was the subject of Sanctions.
(ii)
Foreign Corrupt Practices Act. Neither the Company nor any director, officer, or employee of the Company, or to the Company’s Knowledge, any other person associated with or acting on behalf of the Company, including, without limitation, any agent or affiliate of the Company
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has (a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or (d) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Company has instituted and maintains policies and procedures designed to ensure compliance therewith.
(iii)
No Disqualification Events. With respect to the Shares, neither the Company, nor any of its predecessors, directors, executive officers, or any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale of any Sales (each, an “Company Covered Person” and, collectively, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine (i) the identity of each person that is a Company Covered Person; and (ii) whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Purchaser a copy of any disclosures provided thereunder.
3.8.
No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person, as defined below, acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) in connection with the offer or sale of any of the Shares. For purposes of this Agreement, “Person” means any individual, corporation, company, limited liability company, partnership, limited liability partnership, trust, estate, proprietorship, joint venture, association, organization or entity.
4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents warrants and covenants with the Company as follows:
4.1.
Legal Power. As applicable, Purchaser has the requisite power and is authorized to enter into this Agreement, to purchase the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement.
4.2.
Due Execution. This Agreement has been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3.
Access to Information. Purchaser understands that an investment in the Shares involves a high degree of risk and long term or permanent illiquidity, including, risk of loss of their entire investment. Purchaser has been given full and complete access to the Company for the purpose of obtaining such information as Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Shares. Purchaser represents that Purchaser has received and reviewed copies of the SEC Reports. Purchaser represents that Purchaser has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Shares, all as Purchaser or Purchaser’s investor’s representatives have deemed necessary to make an informed investment decision to purchase the Shares.
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4.4.
Restricted Securities.
(i)
Purchaser has been advised that none of the Shares have been registered under the Securities Act or any other applicable securities laws and that the Shares are being offered and sold pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D thereunder, and that the Company’s reliance upon Section 4(a)(2) and/or Rule 506 of Regulation D is predicated in part on such Purchaser representations as contained herein. Purchaser acknowledges that the Shares will be issued as “restricted securities” as defined by Rule 144 promulgated pursuant to the Securities Act. None of the Shares may be resold in the absence of an effective registration thereof under the Securities Act and applicable state securities laws unless, in the opinion of counsel reasonably satisfactory to the Company, an applicable exemption from registration is available.
(ii)
Purchaser represents that Purchaser is acquiring the Shares for Purchaser’s own account, and not as nominee or agent, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the Securities Act, in a manner which would require registration under the Securities Act or any state securities laws.
(iii)
Purchaser understands and acknowledges that the certificates representing the Shares will bear substantially the following legend:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES OR (ii) THE SECURITIES ARE SOLD PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, NO NOTICE TO OR CONSENT OF THE COMPANY SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH SALE OR TRANSFERS.”
(iv)
Purchaser acknowledges that an investment in the Shares is not liquid and is transferable only under limited conditions. Purchaser acknowledges that such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits limited resale of restricted securities subject to the satisfaction of certain conditions and that such Rule is not now available and, in the future, may not become available for resale of any of the Shares. Purchaser is an “accredited investor” as defined in Rule 501 of the Securities Act.
4.5.
Purchaser Sophistication and Ability to Bear Risk of Loss. Purchaser acknowledges that it is able to protect its interests in connection with the acquisition of the Shares and can bear the economic risk of investment in such securities without producing a material adverse change in Purchaser’s financial condition. Purchaser, either alone or with such Purchaser’s representative(s), otherwise has such knowledge and experience in financial or business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Shares.
4.6.
No Advertising. Purchaser has not received any general solicitation or advertising regarding the offer of the Shares.
4.7.
Public Statements. Purchaser agrees not to issue any public statement with respect to the offering of the Shares, Purchaser’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law.
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4.8.
Confidential. Purchaser acknowledges that the information made available to Purchaser other than the SEC Reports is confidential and non-public and agrees that all such information shall be kept in confidence by Purchaser and neither used by Purchaser for Purchaser’s own benefit (other than in connection with this subscription) nor disclosed to any third party for any reason; provided, however, that (a) Purchaser may disclose such information to its affiliates and advisors who may have a need for such information in connection with providing advice to Purchaser with respect to its investment in the Company so long as such affiliates and advisors have an obligation of confidentiality, (b) this obligation shall not apply to any such information that (i) is part of the public knowledge or literature and readily accessible at the date hereof, (ii) becomes part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision), (iii) is being disclosed pursuant to a subpoena or court order or is otherwise required to be provided by law, or (iv) is received from third parties without an obligation of confidentiality (except third parties who disclose such information in violation of any confidentiality agreements or obligations, including, without limitation, any subscription or other similar agreement entered into with the Company) and (c) Purchaser may disclose such information as is necessary to enforce the terms of this Agreement.
4.9.
Exempt Offering. Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.
5.
CONDITIONS.
5.1.
Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares. The obligation hereunder of the Company to close and issue and sell the Shares to Purchaser at the Closing is subject to the satisfaction or waiver, at or before such Closing of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in their sole discretion.
(i)
Accuracy of Purchaser’s Representations and Warranties. The representations and warranties of Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by Purchaser. Purchaser shall have performed, satisfied, and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchaser at or prior to the Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
Delivery of Purchase Price. The Purchase Price for the Shares shall be available in cleared funds and authorized by the Company and Purchaser, in their sole and absolute discretion, for distribution on the Closing in accordance with the terms hereof.
5.2.
Conditions Precedent to the Obligation of Purchaser to Close and to Purchase the Shares. The obligation hereunder of Purchaser to purchase the Shares and consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchaser’s sole benefit and may be waived by Purchaser at any time in its sole discretion.
(i)
Accuracy of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material
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respects as of the Closing, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to such Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been initiated, against the Company, or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
(v)
Shares. At the Closing, the Company shall have delivered to Purchaser evidence of delivery of the Shares along with all appropriate board resolutions or other necessary documentation. The Company shall also deliver this Agreement, duly executed by the Company.
6.
COVENANTS AND AGREEMENTS
6.1.
Use of Proceeds. The Company will use the net proceeds from the sale of the Shares for a repayment of a portion of the credit facility provided to the Company, and for general corporate and working capital purposes. The Company agrees that, without the prior written consent of the Purchaser, the Company will not use any such proceeds (i) to redeem, repurchase or otherwise acquire, or to make any distributions in respect of, any of the Company’s securities, (ii) to repay or otherwise satisfy any indebtedness of the Company (other than the aforementioned credit facility), or (iii) for any personal, family, or household purpose.
7.
MISCELLANEOUS.
7.1.
Governing Law. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each of the parties hereto and their assigns hereby consents to the exclusive jurisdiction and venue of the Courts of the State of Delaware, and the United States District Court for the State of Delaware with respect to any matter relating to this Agreement and performance of the parties’ obligations hereunder, the documents and instruments executed and delivered concurrently herewith or pursuant hereto and performance of the parties’ obligations thereunder and each of the parties hereto hereby consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction. Any action, suit or proceeding relating to such matters shall be commenced, pursued, defended and resolved only in such courts and any appropriate appellate court having jurisdiction to hear an appeal from any judgment entered in such courts. The parties irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. Service of process in any action, suit or proceeding relating to such matters may be made and served within or outside the State of Delaware by registered or certified mail to the parties and their representatives at their respective addresses specified in Section 7.6, provided that a reasonable time, not less than thirty (30) days, is allowed for response. Service of process may also be made in such other manner as may be permissible under the applicable court rules. THE PARTIES HERETO WAIVE TRIAL BY JURY.
7.2.
Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
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7.3.
Entire Agreement. This Agreement and the Exhibit attached hereto, and the other documents delivered pursuant hereto and thereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
7.4.
Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.5.
Amendment and Waiver. Except as otherwise provided herein, any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon each future holder of any security purchased under this Agreement and the Company.
7.6.
Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be effective when delivered personally, or sent by facsimile and in each case with a confirming email (with receipt confirmed), provided that a copy is mailed by registered mail, return receipt requested, or when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested) in each case to the appropriate address set forth below:
If to the Company: DynaResource, Inc.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd.
Suite 1910 North Tower
Las Colinas / Irving, TX 75039
Email: rhazelton@dynaresource.com
Attention: Rohan Hazelton
With a copy to: Dentons Durham Jones Pinegar P.C.
192 East 200 North, Third Floor
St. George, UT 84770
Email: rick.guerisoli@dentons.com
Attention: Rick Guerisoli
If to the Purchaser: Ralph C. Whalen
Email:
Attention:
With a copy to:
Email:
Attention:
7.7.
Faxes, Electronic Mail and Counterparts. This Agreement may be executed in one or more counterparts. Delivery of an executed counterpart of the Agreement or any exhibit attached hereto by facsimile transmission or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all
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manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver them in person to all other parties. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
7.8.
Expenses. Except as specifically provided herein, each party shall bear its own costs and expenses, including legal and accounting fees, in connection with this Agreement and the transactions contemplated hereunder.
7.9.
Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
7.10.
Further Assurances. At any time and from time to time after the Closing, upon reasonable request of the other, each party shall do, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances and assurances as may be reasonably required for the more complete consummation of the transactions contemplated herein.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
DYNARESOURCE, INC.
By: /s/ Rohan Hazelton
Name: Rohan Hazelton
Title: Chief Executive Officer
By: /s/ Ralph Whalen
Name: Ralph Whalen
Title: Individual Investor
[Signature page to Stock Purchase Agreement]
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made as of October 18, 2024, by and between DYNARESOURCE, INC., a Delaware corporation (the “Company”) and Rohan Hazelton (“Purchaser”).
WHEREAS:
A. The Board of Directors of the Company (the “Board of Directors”) has authorized the issuance to the Purchaser for the aggregate purchase price of $1.04 (the “Purchase Price”) 10,000 shares (the “Shares”) of common stock of the Company, par value $0.01 per share (the “Common Stock”).
B. The Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and in reliance on the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, it is agreed as follows:
1.
PURCHASE AND SALE OF SHARES.
1.1.
Purchase and Sale. In reliance upon the representations and warranties of the Company and Purchaser contained herein and subject to the terms and conditions set forth herein, at the Closing (as defined below), Purchaser shall purchase, and the Company shall sell and issue to Purchaser, the Shares in exchange for the Purchase Price. Upon issuance of the Shares, Purchaser shall pay the Purchase Price to the Company by wire transfer of good funds to the account specified by the Company.
2.
CLOSING.
2.1.
Date and Time. The sale of Shares will take place at a closing (the “Closing”) at the offices of the Company or at such other place (or remotely) as the Company and Purchaser shall agree in writing on or about October 18, 2024.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to Purchaser to enter into this Agreement and to purchase the Shares, the Company represents and warrants that the following statements are true and correct in all material respects as of the date hereof and will be true and correct in all material respects at Closing, except as expressly qualified or modified herein.
3.1.
Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has full corporate power and authority to enter into and perform its obligations under this Agreement, and to own its properties and to carry on its business in all jurisdictions as presently conducted and as proposed to be conducted. The Company and its subsidiaries have all government and other licenses and permits and authorizations to do business in all jurisdictions where their activities require such license, permits and authorizations, except where failure to obtain any such license, permit or authorization will not have a material adverse effect on the Company’s business.
3.2.
Capitalization. As of October 18, 2024, the Company was authorized to issue 60,001,000 shares of capital stock, consisting of 40,000,000 shares of Common Stock and 20,001,000 shares of
1
Preferred Stock (the “Preferred Stock”), of which 23,658,995 shares of Common Stock, 1,734,992 shares of Series C Preferred Stock, 760,000 shares of Series D Preferred Stock and 1,552,794 shares of Series E Preferred Stock were issued and outstanding. All outstanding shares of the Company’s capital stock have been duly authorized and validly issued, and are fully paid, non-assessable, and free of any pre-emptive rights, other than those certain preemptive rights set forth in the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock, as amended (the “Series C Designation”). There is only one class and series of Common Stock of the Company, without any special series, rights, preferences or designations assigned to any particular shares of Common Stock.
3.3.
Authorization and Enforcement. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The Company has full corporate power and authority necessary to enter into and deliver this Agreement and to perform its obligations hereunder and thereunder.
3.4.
Reservation and Valid Issuance of Shares. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, upon payment of the Purchase Price and issuance of the Shares, the Shares will be duly authorized, validly issued, fully paid, non-assessable and free of pre-emptive rights.
3.5.
No Conflict, Breach, Violation or Default; Third Party Consents. Subject to the waiver by Golden Post Rail, LLC of its pre-emptive rights under the Series C Designation, the execution, delivery and performance of this Agreement by the Company and the issuance and sale of the Shares will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the Company’s Amended and Restated Certificate of Incorporation, as amended, or the Company’s Bylaws, both as in effect on the date hereof (collectively, the “Company Documents”), (ii) any shareholder agreement or voting agreement to which any officer, director or holder of more than 5% of the Company’s securities is a party to, (iii) any statute, rule, regulation or order of any governmental agency, self-regulatory agency, securities regulatory or insurance regulatory agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its assets or properties, or (iv) any material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of its assets or properties is subject; except in the case of each of clauses (iii) and (iv), such as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect on the Company or its ability to perform its obligations hereunder. No approval of or filing with any governmental authority or other third-party entity or person is required for the Company to enter into, execute or perform this Agreement or any related transaction document.
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3.6.
SEC Reports and Financial Statements.
(i)
SEC Reports. The Company has made available to Purchaser through the SEC’s EDGAR system accurate and complete copies (excluding copies of exhibits) of each report, quarterly report, annual report, current report, registration statement, and definitive proxy statement or information statement filed by the Company with the United States Securities and Exchange Commission (“SEC”) since December 31, 2022 (collectively, the “SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by the Company with the SEC have been so filed. To the Company’s Knowledge, as of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (ii) none of the SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii)
Financial Statements. The financial statements contained in the SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto at the time of filing and as of the date of the Closing; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements and, in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end audit adjustments which will not, individually or in the aggregate, be material in amount); and (iii) fairly present, in all material respects, the financial position of the Company as of the respective dates thereof and the results of operations of the Company for the periods covered thereby, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. All adjustments considered necessary for a fair presentation of the financial statements have been included.
(iii)
Securities Law Compliance. Assuming the accuracy of the representations and warranties of Purchaser, set forth in Section 4 of this Agreement, the offer and sale of the Shares will constitute an exempted transaction under the Securities Act, and registration of the Shares is not required. The Company shall make such filings as may be necessary to comply with the federal securities laws and the “blue sky” laws of any state in connection with the offer and sale of the Shares, which filings will be made in a timely manner.
(iv)
For the purposes of this agreement, “Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company.
3.7.
Compliance with Law; No Disqualification.
(i)
OFAC. Neither the Company nor any of its affiliates or any of their respective directors, officers, employees or agents is a Person that is, or is owned or controlled by Persons that are: (A) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), or (B) located, organized or resident in a country or territory that is the subject of Sanctions. Neither the Company nor any of its affiliates has engaged in, or is now engaged in, directly or indirectly, any dealings or transactions with any Person, or in any country or territory, that, at the time of the dealing or transaction, is or was the subject of Sanctions.
(ii)
Foreign Corrupt Practices Act. Neither the Company nor any director, officer, or employee of the Company, or to the Company’s Knowledge, any other person associated with or acting on behalf of the Company, including, without limitation, any agent or affiliate of the Company
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PLANO 3895654.1
has (a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or (d) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Company has instituted and maintains policies and procedures designed to ensure compliance therewith.
(iii)
No Disqualification Events. With respect to the Shares, neither the Company, nor any of its predecessors, directors, executive officers, or any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale of any Sales (each, an “Company Covered Person” and, collectively, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine (i) the identity of each person that is a Company Covered Person; and (ii) whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Purchaser a copy of any disclosures provided thereunder.
3.8.
No Directed Selling Efforts or General Solicitation. Neither the Company nor any Person, as defined below, acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D promulgated under the Securities Act) in connection with the offer or sale of any of the Shares. For purposes of this Agreement, “Person” means any individual, corporation, company, limited liability company, partnership, limited liability partnership, trust, estate, proprietorship, joint venture, association, organization or entity.
4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents warrants and covenants with the Company as follows:
4.1.
Legal Power. As applicable, Purchaser has the requisite power and is authorized to enter into this Agreement, to purchase the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement.
4.2.
Due Execution. This Agreement has been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3.
Access to Information. Purchaser understands that an investment in the Shares involves a high degree of risk and long term or permanent illiquidity, including, risk of loss of their entire investment. Purchaser has been given full and complete access to the Company for the purpose of obtaining such information as Purchaser or its qualified representative has reasonably requested in connection with the decision to purchase the Shares. Purchaser represents that Purchaser has received and reviewed copies of the SEC Reports. Purchaser represents that Purchaser has been afforded the opportunity to ask questions of the officers of the Company regarding its business prospects and the Shares, all as Purchaser or Purchaser’s investor’s representatives have deemed necessary to make an informed investment decision to purchase the Shares.
4
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4.4.
Restricted Securities.
(i)
Purchaser has been advised that none of the Shares have been registered under the Securities Act or any other applicable securities laws and that the Shares are being offered and sold pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D thereunder, and that the Company’s reliance upon Section 4(a)(2) and/or Rule 506 of Regulation D is predicated in part on such Purchaser representations as contained herein. Purchaser acknowledges that the Shares will be issued as “restricted securities” as defined by Rule 144 promulgated pursuant to the Securities Act. None of the Shares may be resold in the absence of an effective registration thereof under the Securities Act and applicable state securities laws unless, in the opinion of counsel reasonably satisfactory to the Company, an applicable exemption from registration is available.
(ii)
Purchaser represents that Purchaser is acquiring the Shares for Purchaser’s own account, and not as nominee or agent, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the Securities Act, in a manner which would require registration under the Securities Act or any state securities laws.
(iii)
Purchaser understands and acknowledges that the certificates representing the Shares will bear substantially the following legend:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES OR (ii) THE SECURITIES ARE SOLD PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, NO NOTICE TO OR CONSENT OF THE COMPANY SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH SALE OR TRANSFERS.”
(iv)
Purchaser acknowledges that an investment in the Shares is not liquid and is transferable only under limited conditions. Purchaser acknowledges that such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits limited resale of restricted securities subject to the satisfaction of certain conditions and that such Rule is not now available and, in the future, may not become available for resale of any of the Shares. Purchaser is an “accredited investor” as defined in Rule 501 of the Securities Act.
4.5.
Purchaser Sophistication and Ability to Bear Risk of Loss. Purchaser acknowledges that it is able to protect its interests in connection with the acquisition of the Shares and can bear the economic risk of investment in such securities without producing a material adverse change in Purchaser’s financial condition. Purchaser, either alone or with such Purchaser’s representative(s), otherwise has such knowledge and experience in financial or business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Shares.
4.6.
No Advertising. Purchaser has not received any general solicitation or advertising regarding the offer of the Shares.
4.7.
Public Statements. Purchaser agrees not to issue any public statement with respect to the offering of the Shares, Purchaser’s investment or proposed investment in the Company or the terms of any agreement or covenant between them and the Company without the Company’s prior written consent, except such disclosures as may be required under applicable law.
5
PLANO 3895654.1
4.8.
Confidential. Purchaser acknowledges that the information made available to Purchaser other than the SEC Reports is confidential and non-public and agrees that all such information shall be kept in confidence by Purchaser and neither used by Purchaser for Purchaser’s own benefit (other than in connection with this subscription) nor disclosed to any third party for any reason; provided, however, that (a) Purchaser may disclose such information to its affiliates and advisors who may have a need for such information in connection with providing advice to Purchaser with respect to its investment in the Company so long as such affiliates and advisors have an obligation of confidentiality, (b) this obligation shall not apply to any such information that (i) is part of the public knowledge or literature and readily accessible at the date hereof, (ii) becomes part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision), (iii) is being disclosed pursuant to a subpoena or court order or is otherwise required to be provided by law, or (iv) is received from third parties without an obligation of confidentiality (except third parties who disclose such information in violation of any confidentiality agreements or obligations, including, without limitation, any subscription or other similar agreement entered into with the Company) and (c) Purchaser may disclose such information as is necessary to enforce the terms of this Agreement.
4.9.
Exempt Offering. Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of Purchaser in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Shares.
5.
CONDITIONS.
5.1.
Conditions Precedent to the Obligation of the Company to Close and to Sell the Shares. The obligation hereunder of the Company to close and issue and sell the Shares to Purchaser at the Closing is subject to the satisfaction or waiver, at or before such Closing of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in their sole discretion.
(i)
Accuracy of Purchaser’s Representations and Warranties. The representations and warranties of Purchaser shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by Purchaser. Purchaser shall have performed, satisfied, and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchaser at or prior to the Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
Delivery of Purchase Price. The Purchase Price for the Shares shall be available in cleared funds and authorized by the Company and Purchaser, in their sole and absolute discretion, for distribution on the Closing in accordance with the terms hereof.
5.2.
Conditions Precedent to the Obligation of Purchaser to Close and to Purchase the Shares. The obligation hereunder of Purchaser to purchase the Shares and consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchaser’s sole benefit and may be waived by Purchaser at any time in its sole discretion.
(i)
Accuracy of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material
6
PLANO 3895654.1
respects as of the Closing, except for representations and warranties that speak as of a particular date, which shall be true and correct in all material respects as of such date.
(ii)
Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to such Closing.
(iii)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(iv)
No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been initiated, against the Company, or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
(v)
Shares. At the Closing, the Company shall have delivered to Purchaser evidence of delivery of the Shares along with all appropriate board resolutions or other necessary documentation. The Company shall also deliver this Agreement, duly executed by the Company.
6.
COVENANTS AND AGREEMENTS
6.1.
Use of Proceeds. The Company will use the net proceeds from the sale of the Shares for a repayment of a portion of the credit facility provided to the Company, and for general corporate and working capital purposes. The Company agrees that, without the prior written consent of the Purchaser, the Company will not use any such proceeds (i) to redeem, repurchase or otherwise acquire, or to make any distributions in respect of, any of the Company’s securities, (ii) to repay or otherwise satisfy any indebtedness of the Company (other than the aforementioned credit facility), or (iii) for any personal, family, or household purpose.
7.
MISCELLANEOUS.
7.1.
Governing Law. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each of the parties hereto and their assigns hereby consents to the exclusive jurisdiction and venue of the Courts of the State of Delaware, and the United States District Court for the State of Delaware with respect to any matter relating to this Agreement and performance of the parties’ obligations hereunder, the documents and instruments executed and delivered concurrently herewith or pursuant hereto and performance of the parties’ obligations thereunder and each of the parties hereto hereby consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction. Any action, suit or proceeding relating to such matters shall be commenced, pursued, defended and resolved only in such courts and any appropriate appellate court having jurisdiction to hear an appeal from any judgment entered in such courts. The parties irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. Service of process in any action, suit or proceeding relating to such matters may be made and served within or outside the State of Delaware by registered or certified mail to the parties and their representatives at their respective addresses specified in Section 7.6, provided that a reasonable time, not less than thirty (30) days, is allowed for response. Service of process may also be made in such other manner as may be permissible under the applicable court rules. THE PARTIES HERETO WAIVE TRIAL BY JURY.
7.2.
Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto.
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7.3.
Entire Agreement. This Agreement and the Exhibit attached hereto, and the other documents delivered pursuant hereto and thereto, constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, or agreements except as specifically set forth herein or therein. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided herein.
7.4.
Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.5.
Amendment and Waiver. Except as otherwise provided herein, any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of the Company and Purchaser. Any amendment or waiver effected in accordance with this Section 7.5 shall be binding upon each future holder of any security purchased under this Agreement and the Company.
7.6.
Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be effective when delivered personally, or sent by facsimile and in each case with a confirming email (with receipt confirmed), provided that a copy is mailed by registered mail, return receipt requested, or when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested) in each case to the appropriate address set forth below:
If to the Company: DynaResource, Inc.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd.
Suite 1910 North Tower
Las Colinas / Irving, TX 75039
Email: asotomayor@dynaresource.com
Attention: Alonso Sotomayor
With a copy to: Dentons Durham Jones Pinegar P.C.
192 East 200 North, Third Floor
St. George, UT 84770
Email: rick.guerisoli@dentons.com
Attention: Rick Guerisoli
If to the Purchaser: Rohan Hazelton
Email:
Attention:
With a copy to:
Email:
Attention:
7.7.
Faxes, Electronic Mail and Counterparts. This Agreement may be executed in one or more counterparts. Delivery of an executed counterpart of the Agreement or any exhibit attached hereto by facsimile transmission or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all
8
PLANO 3895654.1
manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver them in person to all other parties. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
7.8.
Expenses. Except as specifically provided herein, each party shall bear its own costs and expenses, including legal and accounting fees, in connection with this Agreement and the transactions contemplated hereunder.
7.9.
Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
7.10.
Further Assurances. At any time and from time to time after the Closing, upon reasonable request of the other, each party shall do, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances and assurances as may be reasonably required for the more complete consummation of the transactions contemplated herein.
[Signatures on following page]
9
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
DYNARESOURCE, INC.
By: /s/ Alonso Sotomayor
Name: Alonso Sotomayor
Title: Chief Financial officer
By: /s/ Rohan Hazelton
Name: Rohan Hazelton
Title: Individual Investor
[Signature page to Stock Purchase Agreement]
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DynaResource Closes $6 Million Non-Brokered Private Placement
All figures in United States Dollars (“USD”).
IRVING, TX / ACCESSWIRE / October 21, 2024 / DYNR-DynaResource, Inc. (OTCQX:DYNR) (“DynaResource”, or “the Company”) is pleased to report it has completed a non-brokered private placement for gross proceeds of $6 million (the "Offering"). The Company issued a total of 5,769,231 common shares of the Company (each a "Share") at a price of $1.04 per Share.
The Company intends to use the proceeds from the Offering for general exploration and resource expansion drilling, geological and technical studies, further capital investment for optimization of the mine as well as for working capital and general corporate purposes.
Subject to Rule 144 the Shares are subject to a minimum six (6) month holding period.
“We are very pleased to receive such a strong level of support solely from our current shareholder base,” stated Rohan Hazelton, President & CEO DynaResource. “Over the past quarter, the Company has been focused on optimizing operations and cost reduction at the mine and mill in order to improve overall profitability at San Jose de Gracia. Capital investments in the mill, such as a new vibrating screen, are aimed at improving throughput and recoveries. A new Falcon concentrator was also installed in July 2024 which has produced additional saleable gravity concentrate and has been successful in reducing gold grade to tailings. Cost reduction measures, such as reducing operating leases on equipment, have helped improve operating margins. The recent successes demonstrate management’s commitment to improve operations and restore profitability to operations while building value for our shareholders. San Jose de
Gracia has incredible untapped exploration value in this prolific district and we look forward to expanding exploration drilling with this funding.”
On behalf of the Board of Directors of DynaResource, Inc.
Rohan Hazelton
President & CEO
About DynaResource
DynaResource is a junior gold mining producer trading on the OTCQX under the symbol “DYNR”. DynaResource is actively mining and expanding the historic San Jose de Gracia gold mining district in Sinaloa, Mexico.
For Information on DynaUSA please visit www.dynaresource.com, or contact:
Investor Relations:
Katherine Pryde, Investor Relations Manager
+1 972-869-9400
info@dynaresource.com
SOURCE: DynaResource, Inc.
View the original press release on accesswire.com.
IMPORTANT CAUTIONARY NOTE REGARDING CANADIAN DISCLOSURE STANDARDS
The Company is an “OTC Reporting Issuer” as that term is defined in Multilateral Instrument 51-509, Issuers Quoted in the U.S. Over-the-Counter Markets, promulgated by various Canadian Provincial Securities Commissions. Accordingly, certain disclosure in this news release or other disclosure provided by the Company has been prepared in accordance with the requirements of securities laws in effect in Canada, which differ from the requirements of United States securities laws. In Canada, an issuer is required to provide technical information with respect to mineralization, including reserves and resources, if any, on its mineral exploration properties in accordance with Canadian requirements, which differ significantly from the requirements of the United States Securities and Exchange Commission (the “SEC”) applicable to registration statements and reports filed by United States companies pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. As such, information contained in this news release or other disclosure provided by the Company concerning descriptions of mineralization under Canadian standards may not be comparable to similar information made public by United States companies subject to the reporting and disclosure requirements of the SEC and not subject to Canadian securities legislation. This news release or other disclosure provided by the Company may use the terms “measured mineral resources”, “indicated mineral resources” and “inferred mineral resources”. While these terms are recognized and required by Canadian regulations (under National Instrument 43-101, Standards of Disclosure for Mineral Projects), the SEC does not recognize them. United States investors are cautioned not to assume that any part or all of the mineral deposits in these categories will ever be converted to
reserves. In addition, “inferred mineral resources” have a great amount of uncertainty as to their existence and economic and legal feasibility. It cannot be assumed that all or any part of an inferred mineral resource will ever be upgraded to a higher category. Under Canadian securities legislation, estimates of inferred mineral resources may not form the basis of feasibility or pre-feasibility studies, although they may form, in certain circumstances, the basis of a “preliminary economic assessment” as that term is defined in National Instrument 43-101, Standards of Disclosure for Mineral Projects. U.S. investors are cautioned not to assume that part or all of an inferred mineral resource exists, or is economically or legally mineable.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
This news release contains forward-looking statements within the meaning of Section 27 A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Certain information contained in this news release, including any information relating to future financial or operating performance may be deemed “forward-looking”. All statements in this news release, other than statements of historical fact, that address events or developments that DynaResource expects to occur, are “forward-looking information”. These statements relate to future events or future performance and reflect the Company’s expectations regarding the future growth, results of operations, business prospects and opportunities of DynaResource. These forward-looking statements reflect the Company’s current internal projections, expectations or beliefs and are based on information currently available to DynaResource. In some cases, forward-looking information can be identified by terminology such as “may”, “will”, “should”, “expect”, “intend”, “plan”, “anticipate”, “believe”, “estimate”, “projects”, “potential”, “scheduled”, “forecast”, “budget” or the negative of those terms or other comparable terminology. Certain assumptions have been made regarding the Company’s plans at the San Jose de Gràcia property. Many of these assumptions are based on factors and events that are not within the control of DynaResource and there is no assurance they will prove to be correct. Such factors include, without limitation: capital requirements, fluctuations in the international currency markets and in the rates of exchange of the currencies of the United States and México; price volatility in the spot and forward markets for commodities; discrepancies between actual and estimated production, between actual and estimated reserves and resources and between actual and estimated metallurgical recoveries; changes in national and local governments in any country which DynaResource currently or may in the future carry on business; taxation; controls; regulations and political or economic developments in the countries in which DynaResource does or may carry on business; the speculative nature of mineral exploration and development, including the risks of obtaining necessary licenses and permits, diminishing quantities or grades of reserves; competition; loss of key employees; additional funding requirements; actual results of current exploration or reclamation activities; changes in project parameters as plans continue to be refined; accidents; labor disputes; defective title to mineral claims or property or contests over claims to mineral properties. In addition, there are risks and hazards associated with the business of mineral exploration, development and mining, including environmental hazards, industrial accidents, unusual or unexpected formations, pressures, cave-ins, flooding and gold bullion losses (and the risk of inadequate insurance or inability to
obtain insurance, to cover these risks) as well as those risks referenced in the Annual Report for DynaResource available at www.sec.gov. Forward-looking information is not a guarantee of future performance and actual results, and future events could differ materially from those discussed in the forward-looking information. All of the forward-looking information contained in this news release is qualified by these cautionary statements. Although DynaResource believes that the forward-looking information contained in this news release is based on reasonable assumptions, readers cannot be assured that actual results will be consistent with such statements. Accordingly, readers are cautioned against placing undue reliance on forward-looking information. DynaResource expressly disclaims any intention or obligation to update or revise any forward-looking information, whether as a result of new information, events or otherwise.