Dynaresource, Inc 8-K, filed Jun 28, 2024
Dynaresource, Inc. (DYNR)
About this 8-K
Dynaresource, Inc filed this 8-K on June 28, 2024.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- 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
Date of Report June 26, 2024 (Date of earliest event reported): |
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(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On June 26, 2024, DynaResource, Inc. (the “Company”) entered into a Stock Purchase Agreement (the “SPA”) with Golden Post Rail, LLC (“Golden Post”). The SPA is the definitive agreement contemplated by the Memorandum of Understanding (the “MOU”) dated June 3, 2024 (as disclosed in the Company’s Form 8-K filed with the Securities Exchange Commission on June 7, 2024) with Ocean Partners Holdings Limited (“Ocean Partners”) to memorialize Golden Post’s intent to purchase shares of stock from the Company for a purchase price of $2,500,000 in a private placement transaction.
Pursuant to the SPA, as discussed below, the Company has adopted a Certificate of Designations creating the Series E Convertible Preferred Stock (the “Series E Preferred Stock”) that is junior to the Company’s outstanding Series C and Series D Preferred Stock and pari passuwith the Company’s Common Stock. On June 27, 2024, the Company issued 1,552,795 shares of Series E Preferred Stock to Golden Post in exchange for a payment of $2,500,000, at a price of $1.61 per share as contemplated by the MOU and the SPA.
As contemplated by the MOU, at closing of the SPA, Golden Post waived certain preemptive and antidilution rights that would otherwise have been triggered by stock issuances contemplated by the MOU and employment-related transactions undertaken contemporaneously with the MOU.
The foregoing summary is qualified in its entirety by reference to the full text of the SPA, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein in its entirety by reference. The representations, warranties and covenants contained in the SPA were made only for purposes of the SPA and as of specific dates, were solely for the benefit of the parties to the SPA, 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 SPA, on June 27, 2024 the Company issued and sold 1,552,795 shares of Series E Preferred Stock to Golden Post for a purchase price of $2,500,000, a price of $1.61 per share, in a privately negotiated transaction exempt from registration under the Securities Act of 1933 pursuant to Section 4(a)(2). The Series E Preferred Stock is convertible on a one-for-one basis into shares of Common Stock of the Company, par value $0.01 per share.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As discussed above, the Company adopted, by the affirmative vote of its Board of Directors, and filed a 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 E Convertible Preferred Stock (the “Series E Designation”) with the Secretary of State of the State of Delaware on June 26, 2024. Pursuant to the Series E Designation, the Company designated 1,552,795 shares of its Preferred Stock, par value 0.001 per share, as Series E Convertible Preferred Stock.
The Series E Preferred Stock is junior in rank to the Company’s outstanding Series C and Series D Preferred Stock and pari passu with the Company’s Common Stock, having the same dividend, liquidation, and voting rights (on an as-converted basis) as Common Stock. The shares of Series E Preferred Stock are convertible at the holder’s request on a one-for-one basis (adjustable for certain recapitalizations and similar events) into shares of Common Stock.
The foregoing summary is qualified in its entirety by reference to the full text of the Series E Designation, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein in its entirety by reference.
Item 9.01 Financial Statements and Exhibits.
Exhibit No. |
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Description |
3.1 |
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10.1 |
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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: |
June 28, 2024 |
By: |
/s/ Rohan Hazelton |
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Rohan Hazelton |
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 E CONVERTIBLE PREFERRED STOCK
for
DYNARESOURCE, INC.
DYNARESOURCE, INC., a Delaware corporation (the “Corporation”), pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware, does hereby make this Certificate of Designations and does hereby state and certify that pursuant to the authority expressly vested in the Board of Directors of the Corporation (the “Board of Directors”) by the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Amended and Restated Certificate of Incorporation”), the Board of Directors duly adopted the following resolutions, which resolutions remain in full force and effect as of the date hereof:
RESOLVED, that, pursuant to paragraph 3 of Article IV of the Amended and Restated Certificate of Incorporation, the Board of Directors hereby authorizes the issuance of, and fixes the designation and preferences and relative, participating, optional and other special rights, and qualifications, limitations and restrictions, of a series of Preferred Stock consisting of 1,552,795 shares (the “Series E Preferred Shares”), par value $0.0001 per share, to be designated “Series E Convertible Preferred Stock”.
RESOLVED, that each of the Series E Preferred Shares shall rank equally in all respects and shall be subject to the following terms and provisions:
1. Certain Defined Terms. For purposes of this Certificate of Designations, the following terms shall have the following meanings:
(b) “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in the City of New York are authorized or required by law to remain closed.
(c) “Common Shares” means fully paid, validly issued and non-assessable shares of Common Stock.
(d) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(e) “Common Stock Equivalent” means any rights, warrants or options to purchase or other securities convertible into or exchangeable or exercisable for, directly or indirectly, any (1) shares of Common Stock or (2) securities convertible into or exchangeable or exercisable for, directly or indirectly, shares of Common Stock.
(f) “Equity Security” means (i) any shares of capital stock of the Corporation, (ii) any rights, options, warrants or similar securities to subscribe for, purchase or otherwise acquire any shares of capital stock of the Corporation, and (iii) debt or other evidences of indebtedness, capital stock or other securities directly or indirectly convertible into or exercisable or exchangeable for any shares of capital stock of the Corporation.
(g) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(h) “Holder” means each holder of the Series E Preferred Shares.
(i) “Initial Issuance Date” means June 26, 2024.
(j) “Liquidation Event” means any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary.
(k) “Pari Passu Securities” means the Common Stock and each other class or series of Equity Security of the Corporation (other than the Senior Securities), the terms of which do not expressly provide that it ranks senior
in preference or priority to or on parity, without preference or priority, with respect to the Common Stock or Series E Preferred Shares as to dividend rights or rights upon a Liquidation Event.
(l) “Preferred Stock Original Purchase Price” means $1.61 per share, subject to adjustment from any stock dividends, splits, combinations and similar events of the Series E Preferred Shares.
(m) “Primary Investor” means Golden Post Rail, LLC, a Texas limited liability company, Matthew K. Rose and his heirs, or any charitable organization or foundation.
(n) “Purchase Agreement” means the Stock Purchase Agreement, of even date herewith, by and among the Corporation and the initial purchaser of Series E Preferred Shares thereunder.
(o) “Required Holders” means the Holders of at least a majority of the aggregate Series E Preferred Shares then outstanding, which shall include the Primary Investor for so long as the Primary Investor holds any Series E Preferred Shares.
(p) “SEC” means the United States Securities and Exchange Commission.
(q) “Securities Act” means the Securities Act of 1933, as amended.
(r) “Senior Securities” means the Series C Preferred Shares, the Series D Preferred Shares and each other security of the Corporation which expressly provides that it ranks senior in preference or priority to or on parity, without preference or priority, with respect to the Series E Convertible Preferred Stock as to dividend rights or rights upon a Liquidation Event.
(s) “Series C Preferred Shares” means the Series C Senior Convertible Preferred Stock, par value $0.0001 per share, of the Corporation.
(t) “Series D Preferred Shares” means the Series D Senior Convertible Preferred Stock, par value $0.0001 per share, of the Corporation.
(u) “Subsidiary” shall have the meaning as set forth in the Purchase Agreement.
(v) “Trading Day” means 9:30AM to 3:59PM on any day on which the shares of Common Stock are traded on a Trading Market, or, if the shares of Common Stock are not so traded, a Business Day.
(w) “Trading Market” means the NYSE Amex Equities, the New York Stock Exchange or the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market.
(x) “Transfer Agent” means Signature Stock Transfer, Inc., a Texas corporation, or such other person designated by the Corporation as the transfer agent for the shares of Common Stock.
2. Designation. There is hereby created out of the authorized and unissued shares of preferred stock of the Corporation a series of preferred stock designated as the “Series E Convertible Preferred Stock” (the “Preferred Stock”). The number of shares constituting such series shall be 1,552,795.
3. Dividends. Except for stock dividends or distributions for which adjustments are to be made pursuant to Section 5, Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis, without regard to conversion limitations herein) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. Other than as set forth in the previous sentence, no other dividends shall be paid on shares of Preferred Stock, and the Corporation shall pay no dividends (other than dividends in the form of Common Stock) on shares of the Common Stock unless it simultaneously complies with the previous sentence.
4. Liquidation Preference. In the event of any Liquidation Event, the Holders of the Series E Preferred Shares shall be entitled to receive pari passu with the Pari Passu Securities, on a pro rata basis, out of the
assets of the Corporation available for distribution to stockholders (“Liquidation Funds”), the same amount that the Holders would be entitled to receive had the Series E Preferred Shares converted to Common Stock immediately prior to the Liquidation Event (the “Liquidation Preference”). If upon any such Liquidation Event, the Liquidation Funds shall be insufficient to pay the Holders of the Series E Preferred Shares and the holders of the Pari Passu Securities the full amount to which they shall be entitled, in the case of the Series E Preferred Shares, under this Section 4(a), the Holders of the Series E Preferred Shares and the holders of the Pari Passu Securities shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
5. Optional Conversion by the Holders. Each Holder shall have the right at any time and from time to time, at the option of such Holder and without the payment of additional consideration by the Holder, to convert all or any portion of the Series E Preferred Shares held by such Holder, for such number of Common Shares per each Series E Preferred Share, free and clear of any liens, claims or encumbrances, as is determined by dividing (i) the sum of (A) the Preferred Stock Original Purchase Price plus (B) any accrued but unpaid dividends on such Series E Preferred Share by (ii) the Conversion Price (as defined below) in effect on the Conversion Date (as defined below). Immediately following such conversion, the persons entitled to receive the Common Shares upon the conversion of Series E Preferred Shares shall be treated for all purposes as having become the owners of such Common Shares, subject to the rights provided herein to Holders. The term “Conversion Price” means $1.61 per share, subject to adjustment as provided herein.
(a) Delivery of Conversion Notice. To convert Series E Preferred Shares into Common Shares on any date (a “Conversion Date”), the Holder shall give written notice (a “Conversion Notice”) to the Corporation in the form of Exhibit A hereto (which Conversion Notice will be given by facsimile transmission, e-mail or other electronic means no later than 11:59 p.m. New York City Time on such date, or sent via overnight delivery no later than one (1) Trading Day after such date) stating that such Holder elects to convert the same and shall state therein the number of Series E Preferred Shares to be converted and the name or names in which such Holder wishes the certificate or certificates (or book-entry if the Series E Preferred Shares are uncertificated) for Common Shares to be issued.
(b) Mechanics of Conversion. The Corporation shall, promptly upon receipt of a Conversion Notice (but in any event not less than one (1) Trading Day after receipt of such Conversion Notice), (i) send, via facsimile, e-mail or other electronic means a confirmation of receipt of such Conversion Notice to such Holder and the Transfer Agent, which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms herein and (ii) on or before the first (1st) Trading Day following the date of receipt by the Corporation of such Conversion Notice (the “Share Delivery Date”), credit such aggregate number of Common Shares to which the Holder shall be entitled to such Holder’s or its designee’s balance account with the Depository Trust Company (“DTC”) via its Deposit Withdrawal Agent Commission system. If the number of Series E Preferred Shares represented by the Preferred Stock certificate(s) delivered to the Corporation in connection with a Conversion Notice, to the extent requested by the Holder, is greater than the number of Series E Preferred Shares being converted, then the Corporation shall, as soon as practicable and in no event later than three (3) Business Days after receipt of such Preferred Stock certificate(s) and at its own expense, issue and deliver to the Holder a new Preferred Stock certificate representing the number of Series E Preferred Shares not converted. The person or persons entitled to receive the Common Shares issuable upon a conversion of Series E Preferred Shares shall be treated for all purposes as the record holder or holders of such Common Shares on the Conversion Date.
The Corporation’s obligation to issue Common Shares upon conversion of Series E Preferred Shares shall, except as set forth below, be absolute, is independent of any covenant of any Holder, and shall not be subject to: (i) any offset or defense; or (ii) any claims against the Holders of Series E Preferred Shares whether pursuant to this Certificate of Designations, the Purchase Agreement or otherwise, including, without limitation, any claims arising out of any selling or short-selling activity by Holders.
(c) [Reserved.]
(d) Adjustments to the Conversion Price.
(i) Adjustments for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Initial Issuance Date effect a stock split of the outstanding Common Stock, the applicable Conversion Price in effect immediately prior to the stock split shall be proportionately decreased. If the Corporation shall at any time or from time to time after the Initial Issuance Date, combine the outstanding shares of Common Stock, the applicable Conversion Price in effect immediately prior to the combination shall be proportionately increased. Any adjustments under this Section 5(d)(i) shall be effective at the close of business on the date the stock split or combination occurs.
(ii) Adjustments for Certain Dividends and Distributions. If the Corporation shall at any time or from time to time on or after the Initial Issuance Date make or issue or set a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in Common Shares then, and in each event, the applicable Conversion Price in effect immediately prior to such event shall be decreased as of the time of such issuance or, in the event such record date shall have been fixed, as of the close of business on such record date, by multiplying the applicable Conversion Price then in effect by a fraction:
(A) the numerator of which shall be the total number of Common Shares issued and outstanding immediately prior to the time of such issuance or the close of business on such record date; and
(B) the denominator of which shall be the total number of Common Shares issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of Common Shares issuable in payment of such dividend or distribution.
(iii) Adjustment for Other Dividends and Distributions. If the Corporation shall at any time or from time to time on or after the Initial Issuance Date make or issue or set a record date for the determination of holders of Common Stock entitled to receive a non-cash dividend or other distribution payable in securities or property other than Common Shares, then, and in each event, an appropriate revision to the applicable Conversion Price shall be made and provision shall be made (by adjustments of the Conversion Price or otherwise) so that the Holders of Series E Preferred Shares shall receive upon conversions thereof, in addition to the number of Common Shares receivable thereon, the number of securities of the Corporation or other issuer (as applicable) or other property that they would have received had the Series E Preferred Shares been converted into Common Shares on the date of such event (provided, however, that, to the extent the right of a Holder of Series E Preferred Shares to participate in any such distribution would result in such Holder of Series E Preferred Shares exceeding the Beneficial Ownership Limitation, then such Holder of Series E Preferred Shares shall not be entitled to participate in such distribution to such extent (or in the beneficial ownership of any Common Shares as a result of such distribution to such extent) and the portion of such distribution shall be held in abeyance for the benefit of such Holder of Series E Preferred Shares until such time, if ever, as its right thereto would not result in such Holder of Series E Preferred Shares exceeding the Beneficial Ownership Limitation).
(e) Notice of Record Date. In the event of any taking by the Corporation of a record date of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, any security or right convertible into or entitling the holder thereof to receive additional Common Shares, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right, the Corporation shall deliver to each Holder at least twenty (20) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution, security or right and the amount and character of such dividend, distribution, security or right.
(f) Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued Common Stock, solely for the purposes of effecting the conversion and/or redemption of the Series E Preferred Shares, an amount of shares of Common Stock equal to 100% of the number of shares issuable upon conversion of the Series E Preferred Shares at the current Conversion Price (the “Required Reserve Amount”). If at any time while any of the Series E Preferred Shares remain outstanding the Corporation does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion and/or redemption of the Series E Preferred Shares at least a number
of shares of Common Stock equal to the Required Reserve Amount (an “Authorized Share Failure”), then the Corporation shall promptly take all action necessary to increase the Corporation’s authorized shares of Common Stock to an amount sufficient to allow the Corporation to reserve the Required Reserve Amount for the Series E Preferred Shares then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60) days (or the lesser of (i) ninety (90) days if the proxy statement is reviewed by the staff of the SEC or (ii) ten (10) days after the staff of the SEC indicates that it has no further comments to such proxy statement) after the occurrence of such Authorized Share Failure (the “Meeting Outside Date”), the Corporation shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Corporation shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to cause its Board of Directors to recommend to the stockholders that they approve such proposal. Notwithstanding the foregoing, if at such time of an Authorized Share Failure, the Corporation is able to obtain the necessary consent of the holders of its capital stock to approve the increase in the number of authorized shares of Common Stock, the Corporation may satisfy this obligation by obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule 14C.
(g) Fractional Shares. No fractional shares shall be issued upon the conversion of any Series E Preferred Shares. All Common Shares (including fractions thereof) issuable upon conversion of more than one Series E Preferred Share by a Holder thereof and all Series E Preferred Shares issuable upon the purchase thereof shall be aggregated for purposes of determining whether the conversion and/or purchase would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion and/or purchase would result in the issuance of a fraction of a share of Common Stock, the Corporation shall, in lieu of issuing any fractional share, either round up the number of shares to the next highest whole number or, at the Corporation’s option, pay the Holder otherwise entitled to such fraction a sum in cash equal to the fair market value of such fraction on the Conversion Date (as determined in good faith by the Board of Directors of the Corporation).
(h) Reorganization, Merger or Going Private. In case of any reorganization or any reclassification of the capital stock of the Corporation or any consolidation or merger of the Corporation with or into any other corporation or corporations or a sale or transfer of all or substantially all of the assets of the Corporation to any other person or a “going private” transaction under Rule 13e-3 promulgated pursuant to the Exchange Act, then, as part of such reorganization, consolidation, merger, or transfer if the holders of shares of Common Stock receive any publicly traded securities as part or all of the consideration for such reorganization, reclassification, consolidation, merger or sale, then it shall be a condition precedent of any such event or transaction that provision shall be made such that each Series E Preferred Share shall thereafter be convertible into such new securities at a conversion price and pricing formula which places the Holders of Series E Preferred Shares in an economically equivalent position as they would have been if not for such event. The Corporation shall give each Holder written notice at least ten (10) Trading Days prior to the consummation of any such reorganization, reclassification, consolidation, merger or sale.
(i) Certificate for Conversion Price Adjustment. The Corporation shall promptly furnish or cause to be furnished to each Holder a certificate prepared by the Corporation setting forth any adjustments or readjustments of the Conversion Price pursuant to this Section 5.
(j) Conversion Limitations. The Corporation shall not effect any conversion of Series E Preferred Shares, and a Holder of Series E Preferred Shares shall not have the right to convert any portion of its Series E Preferred Shares, pursuant to this Section 5, to the extent that after giving effect to such conversion as set forth in this Section 5, the Holder of Series E Preferred Shares (together with its Affiliates, and any other persons acting as a group together with such holder or any of its Affiliates (such persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Common Shares beneficially owned by the Holder of Series E Preferred Shares and its Affiliates and Attribution Parties shall include the number of Common Shares issuable upon conversion of any Series E Preferred Shares, but shall exclude the number of Common Shares which would be issuable upon exercise or conversion of the unexercised or nonconverted portion of any other securities of the Corporation (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder of Series E Preferred Shares or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 5(j), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by each Holder of Series E Preferred Shares that the Corporation is not representing to such Holder of Series E Preferred Shares that such calculation is in compliance with Section 13(d) of the Exchange Act and such Holder of Series E Preferred Shares is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 5(j) applies, the determination of whether the Series E Preferred Shares are convertible (in relation to other securities owned by the Holder of such Series E Preferred Shares together with any Affiliates and Attribution Parties) and of which portion of the Series E Preferred Shares is convertible shall be in the sole discretion of the Holder of such Series E Preferred Shares, and the submission of any Conversion Notice shall be deemed to be such Holder’s determination of whether the Series E Preferred Shares are convertible (in relation to other securities owned by such Holder together with its Affiliates and Attribution Parties) and of which portion of such Series E Preferred Shares is convertible, in each case subject to the Beneficial Ownership Limitation, and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 5(j), in determining the number of outstanding Common Shares, a Holder of Series E Preferred Shares may rely on the number of outstanding Common Shares as reflected in (A) the Corporation’s most recent periodic or annual report filed with the SEC, as the case may be, (B) a more recent public announcement by the Corporation, or (C) a more recent written notice by the Corporation or Transfer Agent setting forth the number of Common Shares outstanding. Upon the written or oral request of a Holder of Series E Preferred Shares, the Corporation shall within one (1) Business Day confirm orally and in writing to such Holder of Series E Preferred Shares the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including Series E Preferred Shares, held by such Holder and/or its Affiliates or Attribution Parties since the date as of which such number of outstanding Common Shares was reported. The “Beneficial Ownership Limitation” shall be 19.99% of the number of Common Shares outstanding immediately after giving effect to the conversion of Series E Preferred Shares for Common Shares. Each Holder of Series E Preferred Shares, upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 5(j); provided, that the Beneficial Ownership Limitation in no event exceeds 49.99% of the number of Common Shares outstanding immediately after giving effect to the conversion of the Series E Preferred Shares held by such Holder of Series E Preferred Shares and the provisions of this Section 5(j) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Corporation. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 5(j) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of any Series E Preferred Shares.
6. Voting Rights. Each Holder of Series E Preferred Shares shall be entitled to the number of votes equal to the number of Common Shares into which such Series E Preferred Shares could be converted and shall have voting rights and powers equal to the voting rights and powers of the Common Stock (except as otherwise expressly provided herein or as required by law, voting together with the Common Stock as a single class) and shall be entitled to notice of any stockholders’ meeting in accordance with the Amended and Restated Bylaws of the Corporation. Fractional votes shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which Series E Preferred Shares held by each Holder could be converted) shall be rounded down to the nearest whole number.
7. Notices. The Corporation shall distribute to the Holders of Series E Preferred Shares copies of all notices, materials, annual and quarterly reports, proxy statements, information statements and any other documents distributed generally to the holders of shares of Common Stock of the Corporation, at such times and by such method as such documents are distributed to such holders of such Common Stock.
8. Replacement Certificates. The certificate(s) representing or the book-entries evidencing the Series E Preferred Shares held by any Holder may be exchanged by such Holder at any time and from time to time for certificates or book-entries with different denominations representing an equal aggregate number of Series E Preferred Shares, as reasonably requested by such Holder, upon surrendering the same (with respect to certificates) or upon written instruction (with respect to uncertificated shares). No service charge will be made for such registration or transfer or exchange.
9. Attorneys’ Fees. In connection with enforcement by a Holder of any obligation of the Corporation hereunder, the prevailing party shall be entitled to recovery of reasonable attorneys’ fees and expenses incurred.
10. No Reissuance. No Series E Preferred Shares acquired by the Corporation by reason of redemption, purchase, conversion or otherwise shall be reissued. Series E Preferred Shares issued and reacquired by the Corporation, whether upon redemption, conversion or otherwise, shall have the status of authorized and unissued undesignated shares of “blank check” preferred stock.
11. Severability of Provisions. If any right, preference or limitation of the Series E Preferred Shares set forth in this Certificate of Designations (as this Certificate of Designations may be amended from time to time) is invalid, unlawful or incapable of being enforced by reason of any rule or law or public policy, all other rights, preferences and limitations set forth in this Certificate of Designations, which can be given effect without the invalid, unlawful or unenforceable right, preference or limitation shall nevertheless remain in full force and effect, and no right, preference or limitation herein set forth shall be deemed dependent upon any such other right, preference or limitation unless so expressed herein.
12. Limitations. Except as may otherwise be required by law and as may be set forth in the Purchase Agreement, the Series E Preferred Shares shall not have any powers, preference or relative participating, optional or other special rights other than those specifically set forth in this Certificate of Designations (as may be amended from time to time) or otherwise in the Amended and Restated Certificate of Incorporation.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be executed by a duly authorized officer of the Corporation as of June 25, 2024.
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DYNARESOURCE, INC. |
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By: |
/s/ Rohan hazelton |
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Name: Rohan Hazelton |
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Title: CEO |
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Certificate of Designations Signature Page
EXHIBIT A
(To be Executed by Holder in order to Convert Series E Preferred Shares)
CONVERSION NOTICE
FOR
SERIES E CONVERTIBLE PREFERRED STOCK
The undersigned, as a holder (“Holder”) of shares of Series E Convertible Preferred Stock (“Series E Preferred Shares”) of DynaResource, Inc. (the “Corporation”), hereby irrevocably elects to convert _____________ Series E Preferred Shares for shares of common stock, par value $0.01 per share, of the Corporation (“Common Shares”) according to the terms and conditions of the Certificate of Designations for the Series E Preferred Shares as of the date written below. The undersigned hereby requests the Common Shares to be issued pursuant to this Conversion Notice in the name of, and delivered via Deposit Withdrawal Agent Commission system to, the undersigned or its designee as indicated below. No fee will be charged to the Holder of Series E Preferred Shares for any conversion. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Certificate of Designations.
Conversion Date: __________________________
Conversion Information: NAME OF HOLDER:
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By:
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Print Name:
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Print Title:
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Print Address of Holder:
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______________________________________
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DWAC Instructions:
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_________________________________________________________________
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_________________________________________________________________
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If Common Shares are to be issued to a person other than Holder, Holder’s signature must be guaranteed below:
SIGNATURE GUARANTEED BY:
THE COMPUTATION OF NUMBER OF COMMON SHARES TO BE RECEIVED IS SET FORTH ON PAGE 2 OF THE CONVERSION NOTICE.
Page 1 to Conversion Notice
Page 2 to Conversion Notice dated |
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for: |
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(Conversion Date) |
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(Name of Holder) |
COMPUTATION OF NUMBER OF COMMON SHARES TO BE RECEIVED
Number of Series E Preferred Shares converted:
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_______________
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Number of Series E Preferred Shares converted times the Preferred Stock Original Purchase Price:
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$_____________ (Total dollar amount converted)
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Conversion Price in effect on the Conversion Date:
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$______________
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Total dollar amount converted divided by Conversion Price =
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_______________ (Number of Common Shares to be issued)
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Please issue and deliver _____ certificate(s) for Common Shares in the following amount(s):
Page 2 to Conversion Notice
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is made as of June 26, 2024, by and between DYNARESOURCE, INC., a Delaware corporation (the “Company”) and GOLDEN POST RAIL, LLC, a Texas limited liability company (“Purchaser”).
RECITALS
The Company and Ocean Partners Holdings Limited (“OP”) entered into a Memorandum of Understanding dated June 3, 2024 (the “MOU”), pursuant to which, among other things, OP granted the Company a put option to require OP to purchase shares of the Company’s common stock, par value $1.00 per share (the “Common Stock”), in connection with the repayment of a credit facility provided to the Company by OP (the “Option”). Contemporaneously with the MOU, the Company entered into agreements with certain officers and directors that included the issuance of shares of Common Stock and options and other rights to acquire shares of Common Stock. In connection with the MOU, (a) Purchaser desires to purchase from the Company, and the Company desires to issue and sell to Purchaser, one million five hundred fifty-two thousand seven hundred and ninety-five (1,552,795) shares of Series E Convertible Preferred Stock (the “Shares”) for a purchase price of Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the “Purchase Price”); and (b) Purchaser desires to waive those certain antidilution protections and preemptive rights described in Section 1.2 hereof as they apply to the Option and stock issuances set forth on Schedule I hereto, which protections and rights are included 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 Convertible Preferred Stock to the Company’s Certificate of Incorporation (the “Series C Designation”) and that certain Securities Purchase Agreement dated May 6, 2015 (the “SPA”) by and between the Company and Purchaser. The parties desire to use this Agreement to document the definitive terms of the foregoing agreements.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, it is agreed as follows:
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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.
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DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>> <<NUM>>.<<VER>> \* MERGEFORMAT PLANO 3895654.1
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Purchaser hereby represents warrants and covenants with the Company as follows:
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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
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THE COMPANY SHALL BE REQUIRED IN CONNECTION WITH ANY SUCH SALE OR TRANSFERS.”
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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: Spencer Fane LLP
1000 Walnut Street, Suite 1400
Kansas City, MO 64106
Facsimile: (816) 474-3216
Email: pmirakian@spencerfane.com
Attention: Pete Mirakian
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DOCPROPERTY DOCXDOCID DMS=IManage Format=<<LIB>> <<NUM>>.<<VER>> \* MERGEFORMAT PLANO 3895654.1
If to the Purchaser: Golden Post Rail, LLC
1110 Post Oak Place
Westlake, TX 76262
Email: mrose@xtiecapital.com
Attention: Matthew 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
[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: CEO
GOLDEN POST RAIL, LLC
By: /s/ Matthew K. Rose
Name: Matthew K. Rose
Title: Manager
[Signature page to Stock Purchase Agreement]
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EXHIBIT A
Series E Designation
SCHEDULE I
Option and Stock Issuances Applicable to Waiver
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