DYNARESOURCE, INC. NOTE PURCHASE AGREEMENT
Exhibit 10.1
DYNARESOURCE, INC.
This
NOTE
PURCHASE AGREEMENT (this “Agreement”) is made as of May ___,
2020, by and among DynaResource, Inc., a Delaware corporation (the
“Company”),
Golden Post Rail, LLC, a Texas limited liability company (the
“Lead Purchaser”), and the other parties
listed on Exhibit A
hereto (each, including the Lead Purchaser, a “Purchaser,” and, collectively, the
“Purchasers”).
RECITALS
A. The
Company desires to issue and sell convertible promissory notes, in
substantially the form attached to this Agreement as Exhibit B (each, a
“Note,” and,
collectively, the “Notes”) in an aggregate amount of
up to $3,900,000, which shall be convertible on the terms stated
therein into equity securities of the Company.
B. To
induce the Lead Purchaser to serve as the lead investor, the
Company desires to issue and sell to Lead Purchaser that certain
warrant, in substantially the form attached to this Agreement as
Exhibit C-1 (the
“GP Warrant”),
which shall be exercisable on the terms stated therein for Common
Stock (as defined therein) of the Company.
C. To
induce the Purchasers (other than the Lead Purchaser) (the
“Remaining
Purchasers”), the Company desires to issue and sell to
each of the Remaining Purchasers a warrant, in substantially the
form attached to this Agreement as Exhibit C-2 (collectively, the
“Remaining
Warrants,” and together with the GP Warrant, the
“Warrants”),
which shall be exercisable on the terms stated therein for Common
Stock of the Company
D. The
Notes and the Warrants and the equity securities issuable upon
conversion and/or exercise thereof (and the securities issuable
upon conversion and/or exercise of such equity securities) are
collectively referred to herein as the “Securities”.
AGREEMENT
In
consideration of the mutual promises contained herein and other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties to this Agreement agree as
follows:
1. Purchase and Sale
of the Notes and the Warrants.
1.1 Sale and Issuance
of the Notes. Subject to the terms and conditions of this
Agreement, at the Closing (as defined below), each Purchaser agrees
to purchase, and the Company agrees to issue and sell to such
Purchaser, a Note in the aggregate principal amount set forth
opposite such Purchaser’s name on Exhibit A. The purchase price
for each Note shall be equal to 100% of the principal amount of
such Note.
1.2 Sale
and Issuance of the Warrants. Subject to the terms and
conditions of this Agreement, at the Closing (as defined below),
(i) Lead Purchaser agrees to purchase, and the Company agrees to
issue and sell to Lead Purchaser, the GP Warrant, to be exercised
for the shares set forth opposite the Lead Purchaser’s name
on Exhibit A, and
(ii) each of the Remaining Purchasers agrees to purchase, and the
Company agrees to issue and sell to such Remaining Purchasers, the
Remaining Warrants to be exercised for the shares set forth
opposite such Remaining Purchaser’s name on Exhibit A.
1.3 Closing;
Delivery.
(a) The purchase and sale of the Notes and the
Warrants shall take place remotely via the exchange of documents
and signatures on the date of this Agreement or at such other time
and place as the Company and the Lead Purchaser may mutually agree
upon, orally or in writing (which time and date are designated as
the “Closing”).
(b) At
the Closing, the Company shall deliver to (i) each Purchaser
participating in the Closing the Note to be purchased by such
Purchaser against (A) payment of the purchase price therefor by
wire transfer to a bank account designated by the Company, and (B)
delivery of counterpart signature pages to the Transaction
Documents (as defined below), (ii) the Lead Purchaser, the GP
Warrant, and (iii) the Remaining Purchasers, the Remaining
Warrants; provided,
that, in the case of the immediately preceding clause (i), to the
extent a Purchaser has delivered payment of the purchase
price set forth opposite such Purchaser’s name on
Exhibit A
prior to the date hereof (the
“Funding Date”), the Company shall deliver to Purchaser,
at the Closing, the Note purchased by such Purchaser against such
Purchaser’s delivery of counterpart signature pages to the
Transaction Documents (as defined below).
(c) The
Company may not issue any additional Notes and/or Warrants
following the Closing unless such issuance is approved in advance
by the Lead Purchaser.
1.4 Closing
Deliverables. At the Closing, the Company shall deliver, or
cause to be delivered:
(a) to the Lead
Purchaser, evidence that the Series D Preferred Stock Certificate
of Designation, setting forth the rights, preferences, privileges
and obligations of the Series D Preferred Stock, has been duly
filed with the Secretary of State of Delaware;
(b) to the Lead
Purchaser, an amendment to the Common Stock Purchase Warrant,
issued to Lead Purchaser on June 30, 2015, extending the maturity
date therein for an additional two (2) years and adding an equity
cap in respect of the exercise of the Common Stock Purchase Warrant
into Common Stock of the Company, duly executed by the Company and
effective as of the Closing;1
(c) to the Lead
Purchaser, that certain Pledge Agreement, dated as of the date
hereof, by and among the Company, Lead Purchaser and Xxx X.
Xxxxxxxx (“X.X. Xxxxxxxx”) (the “Pledge
Agreement”), duly executed by the Company and X.X.
Xxxxxxxx and effective as of the Closing;
(d) to the Lead
Purchaser, evidence that a first priority security interest in the
Collateral (as defined in the Pledge Agreement) has been created
and perfected in favor of the Lead Purchaser or its designee, in
the manner contemplated by the Pledge Agreement, effective as of
the Closing;
(e) to the Lead
Purchaser, an amendment to the Registration Rights Agreement, dated
June 30, 2015, between the Company and Lead Purchaser, duly
executed by the Company, granting to Lead Purchaser customary
registration rights effective as of the Closing;
(f) to the Lead Purchaser, a Satisfaction of
Note and Release, dated effective at least one day prior to the
Initial Closing, between the Company and Equity Trust Company
Custodian FBO Xxxxxxx X. Xxxxxx/Acct. # Z136793, duly executed by
the parties thereto;
(g) to the Lead
Purchaser, (i) evidence reasonably satisfactory to the Lead
Purchaser of payment of the amounts set forth on the Draw Summary
to the extent such amounts were paid in full by the Company prior
to the Closing, and (ii) copies of invoices and other similar
documentation evidencing the amounts set forth on the Draw Summary,
including the name of the payee and the purpose of such payment;
and
(h) such other
documents reasonably requested by the Lead Purchaser.
1.5 Transaction
Documents. Each Purchaser understands and agrees that the
conversion of the Note(s) and the exercise of the Warrant(s) held
by such Purchaser into equity securities of the Company will
require such Purchaser’s execution of certain agreements
relating to the purchase and sale of such securities as well as any
rights relating to such equity securities; provided, however, that the obligation of
each Purchaser to enter into any such agreements shall be subject
to such agreements containing only terms which are reasonable and
customary for the type of investment or exercise being conducted by
such Purchaser; provided, further, that such documents
have customary exceptions to any drag-along applicable to such
Purchaser, including, without limitation, limited representations
and warranties and limited liability and indemnification
obligations on the part of such Purchaser. Each Purchaser’s
rights, preferences and privileges, and any obligations to which it
may be bound, under any such agreement to which it becomes a party
shall be no less favorable than those granted to any other current
or prospective stockholder of the Company thereunder having the
same class or series of securities held by such
Purchaser.
____________________________
1 NTD: Warrant
for 2,306 shares of Common Stock to be issued to GPR and dated
effective prior to the funding and closing of this transaction.
Certificate of Increase to be filed by the Company prior to the
date hereof and issuance of 1,771 shares of Series C Preferred to
GPR to be effective prior to the date hereof.
1.6 Use of
Proceeds. The Company will use the proceeds from the sale of
the Notes and the GP Warrant to GPR (a) first, to satisfy any
payables of the Company that are set forth in the summary attached
hereto as Exhibit E
(the “Draw
Summary”) to the extent due and outstanding as of the
date hereof (it being understood that no payables set forth in the
Draw Summary relate to payables outstanding under any convertible
promissory notes and/or debt securities of the
Company),2 and (b) second, to the extent there are
any funds then remaining, for the expansion of Tres Amigos, subject
to the terms and conditions outlined in the Draw Request approved
by the Lead Purchaser in accordance with the Note and in accordance
with the budget attached hereto as Exhibit D. The Company agrees
that, until such time as the Notes and the GP Warrant are no longer
outstanding, without the prior written consent of the Lead
Purchaser, it 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 to
the extent set forth on Exhibit G attached hereto), or
(iii) for any personal, family, or household purpose. With respect
to the convertible promissory note set forth on Exhibit G attached hereto, the
Company shall, prior to December 31, 2020, repay such convertible
promissory note in full and deliver to the Lead Purchaser a
Satisfaction of Note and Release, in form and substance reasonably
acceptable to Lead Purchaser, duly executed by the Company and the
holder of such convertible promissory note.
1.7 Issuance of
Securities. The
Company has reserved from its unissued shares of Series D Preferred
Stock and Common Stock for issuance and delivery upon the
conversion of the Notes, conversion of the Series D Preferred Stock
underlying the Notes and/or the exercise of the Warrants, such
number of shares of Series D Preferred Stock and Common Stock for
issuance upon any such conversion and/or exercise, and agrees to
take such steps necessary to amend its certificate of incorporation
to provide sufficient authorized numbers of shares of Series D
Preferred Stock and Common Stock issuable upon the conversion of
the Notes, conversion of the Series D Preferred Stock underlying
the Notes and/or exercise of the Warrants, subject to the rights of
its stockholders. All such shares shall be duly authorized, and
when issued upon any such conversion and/or exercise, shall be
validly issued, fully paid and non-assessable, free and clear of
all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights,
except encumbrances or restrictions arising under federal or state
securities laws.
2. Representations,
Warranties and Covenants of the Company. The Company hereby represents and
warrants to each Purchaser, except, in each case, as set forth on
the Disclosure Schedule to this Agreement, attached as Exhibit F to this Agreement,
which exceptions shall be deemed to be part of the representations
and warranties made hereunder, which representations and warranties
are made as of each Closing (unless otherwise specified therein),
that:
2.1 Organization, Good
Standing and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and has all requisite corporate power and
authority to carry on its business as presently conducted. The
Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on the business, assets
(including intangible assets), liabilities, financial condition,
property or results of
operations of the Company.
2.2 Authorization.
The Company has all requisite corporate power and authority to
execute and deliver this Agreement, to sell and issue the Notes and
the Warrants hereunder, and to carry out and perform its
obligations hereunder and thereunder. All corporate action on the
part of the Company, its directors and stockholders necessary for
the authorization, execution, delivery and performance of this
Agreement, the Warrants and the Notes by the Company, has been
taken. This Agreement, the Notes, the Warrants, the Pledge
Agreement and the Side Letter by and between the Company and the
Lead Purchaser (collectively, the “Transaction Documents”), when
executed and delivered by the Company, will constitute the legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general
application affecting enforcement of creditors’ rights
generally and as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable
remedies.
2.3 Capitalization.
(a) The authorized
capital stock of the Company consists, immediately prior to the
Closing, of: (i) 25,000,000 shares of Common Stock, par value $0.01
per share (“Common
Stock”), of which 17,722,825 shares of Common Stock
are issued and outstanding, and (ii) 20,001,000 shares of Preferred
Stock, par value $0.0001 per share (“Preferred Stock”), of which 1,000
shares of Preferred Stock are designated Series A Preferred Stock,
all of which are issued and outstanding, 1,734,992 shares of
Preferred Stock are designated Series C Senior Convertible
Preferred Stock, all of which are issued and outstanding, and
3,000,000 shares of Preferred Stock are designated Series D Senior
Convertible Preferred Stock, none of which have been issued and
outstanding. All of the outstanding shares of Preferred Stock have
been duly authorized, are fully paid and nonassessable and were
issued in compliance with all applicable federal and state
securities laws.
(b) Except as described
above and in Schedule
2.3(b) of the Disclosure Schedule, there are no outstanding
options, warrants, rights (including conversion or preemptive
rights and rights of first refusal or similar rights) or
agreements, orally or in writing, for the purchase or acquisition
from the Company of any shares of Common Stock, Preferred Stock or
any securities convertible into or exchangeable for shares of
Common Stock or Preferred Stock.
____________________________
2 NTD: To
include one-half of the $500,000 success fee of the Company’s
Mexican legal counsel.
(c) The Company has
obtained valid waivers of any rights by other parties to purchase
any of the Company’s Securities (including the Warrants)
covered by this Agreement.
(d) All shares of the
Company’s Common Stock and Preferred Stock are owned of
record and beneficially by the stockholders in the amounts set
forth in the schedule previously provided to the Lead Purchaser.
There are no outstanding dividends, whether current or accumulated,
due or payable on any of the capital stock of the
Company.
2.4 Governmental
Consents. No consent,
approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the
Company is required in connection with the consummation of the
transactions contemplated by this Agreement, except for filings
pursuant to applicable state securities laws and Regulation D
promulgated under the Securities Act of 1933, as amended (the
“Securities
Act”).
2.5 Compliance with
Laws and Other Instruments. The Company is not in violation
or default of any provisions of (i) its certificate of
incorporation or bylaws, (ii) any instrument, judgment, order,
writ, decree or contract to which it is a party or by which it is
bound, or (iii) to its knowledge, any provision of federal or state
statute, rule or regulation applicable to the Company, in the case
of clauses (ii) and (iii), the violation of which would have a
material and adverse effect on the Company, its business or assets.
The execution, delivery and performance of the Transaction
Documents, and the consummation of the transactions contemplated
hereby and thereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time
and giving of notice (or both), either a default under any such
provision, instrument, judgment, order, writ, decree or contract or
an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture or nonrenewal of any material
permit, license, authorization or approval applicable to the
Company, its business or operations. Without limiting the
foregoing, the Company has obtained all waivers reasonably
necessary with respect to any preemptive rights, rights of first
refusal or similar rights, including any notice or offering periods
provided for as part of any such rights, in order for the Company
to consummate the transactions contemplated under the Transaction
Documents without any third party obtaining any rights to cause the
Company to offer or issue any securities of the Company as a result
of the consummation of the transactions contemplated under the
Transaction Documents.
2.6 Litigation.
There is no claim, action, suit, proceeding, arbitration,
complaint, charge or investigation pending or, to the
Company’s knowledge, currently threatened in writing, (a)
against the Company or any officer or directors of the Company
arising out of their employment or board relationship with the
Company or (b) that questions the validity of the Transaction
Documents or the right of the Company to enter into them, or to
consummate the transactions contemplated by the Transaction
Documents. Neither the Company nor any of its officers or directors
is a party or is named as subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government
agency or instrumentality (in the case of officers or directors,
such as would affect the Company).
2.7 Absence of
Liens. The property
and assets that the Company owns are free and clear of all
mortgages, deeds of trust, liens, loans and encumbrances, except
for statutory liens for the payment of current taxes that are not
yet delinquent and encumbrances and liens that arise in the
ordinary course of business and do not materially impair
the Company’s ownership or use of such property or
assets. With respect to the property and assets it leases, the
Company is in compliance with such leases and, to its knowledge,
holds a valid leasehold interest free of any liens, claims or
encumbrances other than those of the lessors of such property or
assets.
2.8 Valid
Offering. Assuming
the accuracy of the representations of the Purchasers in Section 3
of this Agreement and, with respect to the Securities to be offered
and sold hereunder, the Securities will be issued in compliance
with all applicable federal and state securities laws. In
connection with the offering of the Securities made pursuant to
this Agreement, the Company has not published, distributed, issued,
posted or otherwise used or employed and shall not publish,
distribute, issue, post or otherwise use or employ any form of
general solicitation or general advertising within the meaning of
Rule 502 under the Securities Act (a “General
Solicitation”).
2.9 Disqualification.
No disqualifying event described in Rule 506(d)(1)(i)-(viii)
promulgated under the Securities Act is applicable to the Company
or, to the Company’s knowledge, any Company Covered Person,
except for a Disqualification Event as to which Rule
506(d)(2)(ii)-(iv) or (d)(3) is applicable. “Company Covered Person” means,
with respect to the Company as an “issuer” for purposes
of Rule 506 promulgated under the Securities Act, any Person listed
in the first paragraph of Rule 506(d)(1).
2.10 Disclosure.
No representation or warranty of the Company contained in this
Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances under which they were made.
3. Representations,
Warranties and Covenants of each Purchaser. Each Purchaser, solely with respect to
itself, himself or herself and not with respect to any other
Purchaser, hereby represents and warrants to the Company, which
representations and warranties are made as of the date of each
Closing in which such Purchaser participates, that:
3.1 Authorization.
Such Purchaser has full power and authority to enter into this
Agreement. This Agreement, when executed and delivered by such
Purchaser, will constitute valid and legally binding obligations of
such Purchaser, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general
application affecting enforcement of creditors’ rights
generally and as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable
remedies.
3.2 Purchase Entirely
for Own Account. This
Agreement is made with such Purchaser in reliance upon such
Purchaser’s representation to the Company, which by such
Purchaser’s execution of this Agreement, such Purchaser
hereby confirms, that the Securities to be acquired by such
Purchaser will be acquired for investment for the Purchaser’s
own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of
securities laws, and that such Purchaser has no present intention
of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, such Purchaser
further represents that such Purchaser does not presently have any
contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person or to any
third person, with respect to any of the Securities. Such Purchaser
has not been formed for the specific purpose of acquiring the
Securities.
3.3 Disclosure of
Information.
Such Purchaser is aware
of the Company’s business affairs and financial condition and
has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Such
Purchaser has had an opportunity to discuss the Company’s
business, management, financial affairs and the terms and
conditions of the offering of the Securities with the
Company’s management and has had an opportunity to review the
Company’s facilities. The foregoing, however, does not limit
or modify the representations and warranties of the Company in
Section 2 of this Agreement or the right of each Purchaser to rely
thereon.
3.4 Restricted
Securities. Such
Purchaser understands that the Securities have not been, and will
not be, registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona
fide nature of the investment intent and the accuracy of such
Purchaser’s representations as expressed herein. Such
Purchaser understands that the Securities are “restricted
securities” under applicable U.S. federal and state
securities laws and that, pursuant to these laws, such Purchaser
must hold the Securities indefinitely unless they are registered
with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and
qualification requirements is available. Such Purchaser
acknowledges that the Company has no obligation to register or
qualify the Securities for resale. Such Purchaser further
acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of
sale, the holding period for the Securities, and on requirements
relating to the Company which are outside of such Purchaser’s
control, and which the Company is under no obligation and may not
be able to satisfy.
3.5 No Public
Market. Such
Purchaser understands that, except with respect to the Common
Stock, no public market now exists for any of the Securities issued
by the Company, and that the Company has made no assurances that a
public market will ever exist for the Securities.
3.6 Legends.
Such Purchaser understands that the Securities, and any securities
issued in respect thereof or exchange therefor, may bear one or all
of the following legends:
(a) “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF IN VIOLATION OF SECURITIES
LAWS. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.”
(b) Any legend required
by the Blue Sky laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
3.7 Investment
Experience. Such
Purchaser understands that the purchase of the Securities involves
substantial risk, particularly given the limited financial and
operating history of the Company. Such Purchaser has experience as
an investor in securities of companies in the development stage and
acknowledges that such Purchaser is able to fend for itself, can
bear the economic risk of such Purchaser’s investment in the
Securities and has such knowledge and experience in financial or
business matters that such Purchaser is capable of evaluating the
merits and risks of this investment in the Securities and
protecting its own interests in connection with this
investment.
3.8 Disqualification.
Such Purchaser represents that neither such
Purchaser, nor any person or entity with whom such Purchaser shares
beneficial ownership of Company securities, is subject to any of
the “bad actor” disqualifications described in Rule
506(d)(1)(i) to (viii) promulgated under the Securities
Act.
3.9 Accredited
Investor.
Such Purchaser is an
accredited investor as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act.
3.10 Foreign
Investors. If such
Purchaser is not a United States person (as defined by Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended, the
“Code”), such
Purchaser hereby represents that it has satisfied itself as to the
full observance of the laws of its jurisdiction in connection with
any invitation to subscribe for the Securities or any use of this
Agreement, including (a) the legal requirements within its
jurisdiction for the purchase of the Securities, (b) any foreign
exchange restrictions applicable to such purchase, (c) any
governmental or other consents that may need to be obtained, and
(d) the income tax and other tax consequences, if any, that may be
relevant to the purchase, holding, redemption, sale, or transfer of
the Securities. Such Purchaser’s subscription and payment for
and continued beneficial ownership of the Securities, will not
violate any applicable securities or other laws of such
Purchaser’s jurisdiction.
3.11 No
General Solicitation.
Neither such Purchaser, nor any of its officers, directors,
employees, agents, stockholders or partners, has either directly or
indirectly, including, through a broker or finder (a) engaged in
any general solicitation, or (b) published any advertisement in
connection with the offer and sale of the Securities.
4. Finder’s
Fee. Each party
represents that it is not, and will not be, obligated for any
finder’s fee or commission in connection with this
transaction. The Company agrees to indemnify and to hold harmless
each Purchaser from any liability for any commission or
compensation in the nature of a finder’s fee (and the costs
and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees,
or representatives is responsible. Each Purchaser agrees to
indemnify and to hold harmless the Company from any liability for
any commission or compensation in the nature of a finder’s
fee (and the costs and expenses of defending against such liability
or asserted liability) for which the Purchaser or any of its
officers, employees, or representatives is
responsible.
5. Exculpation Among
Purchasers. Each
Purchaser acknowledges that it is not relying upon any person,
other than the Company and its officers and directors, in making
its investment or decision to invest in the Company. Each Purchaser
agrees that neither any Purchaser nor the respective controlling
persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action
heretofore taken or omitted to be taken by any of them in
connection with the purchase of the Securities.
6. Additional
Covenants. Effective as of the Closing, the Company shall,
at all times, (a) appoint and maintain a Chief Financial Officer,
or until such appointment, an acting Chief Financial Officer, (b)
make and keep available adequate current public information, as
those terms are understood and defined in Rule 144 promulgated by
the U.S. Securities and Exchange Commission (the
“SEC”)
under the Securities Act (“SEC Rule
144”), (c) file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”), and (d) furnish to any Purchaser, forthwith
upon request (i) to the extent
accurate, a written statement by
the Company that it has complied with the reporting requirements of
SEC Rule 144, the Securities Act, and the Exchange Act, or that it
qualifies as a registrant whose securities may be resold pursuant
to Form S-3 (at any time after the Company so qualifies); (ii) a
copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company; and
(iii) such other information as may be reasonably requested in
availing any Purchaser of any rule or regulation of the SEC that
permits the selling of any such securities without registration or
pursuant to Form S-3 (at any time after the Company so qualifies to
use such form).
7. Stockholder
Approval. The Company shall solicit from each holder of
Common Stock of the Company entitled to vote at a special or annual
meeting of the holders of Common Stock of the Company (the
“Shareholder
Meeting”), which shall be promptly called and held not
later than July 14, 20203 (the “Shareholder Meeting Deadline”),
such shareholders’ affirmative vote at the Shareholder
Meeting for approval of (a) an amendment of the Company’s
certificate of incorporation to increase the number of authorized
shares of Common Stock from 25,000,000 shares to 40,000,000 shares,
and (b) an amendment of the Certificate of Designations of the
Series C Senior Convertible Preferred Stock, par value $0.0001, of
the Company (i) to extend the maturity date of the Series C Senior
Convertible Preferred Stock by an additional two (2) years, (ii) to
add an equity cap in respect of the conversion of Series C Senior
Convertible Preferred Stock into Common Stock of the Company, and
(iii) to add certain restrictions on the ability of the Company to
issue Series C Senior Convertible Preferred Stock (collectively,
the “Shareholder
Approval”), and the Company shall use its reasonable
best efforts to solicit the approval the holders of Common Stock of
such resolutions and to cause the board of directors of the Company
to recommend to the holders of Common Stock that they approve such
resolutions. Upon receipt by the Company of the Shareholder
Approval, the Company shall promptly provide to the Lead Purchaser
evidence of such Shareholder Approval and evidence of the filing of
an amendment to the certificate of incorporation of the Company and
an amendment to the Certificate of Designations of the Series C
Senior Convertible Preferred Stock with the Secretary of State of
Delaware effecting, in each case, the Shareholder Approval (the
“Charter
Amendments”).
____________________________
3 NTD: To be
60 days from the Closing Date.
8. Miscellaneous.
8.1 Transfer;
Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or
by reason of this Agreement, except as expressly provided in this
Agreement. Subject to the requirements set forth in the Note(s)
and/or the Warrants, the rights under this Agreement may be
assigned (but only with all related obligations) by any Purchaser,
without the consent of the Company, to any Affiliate of such
Purchaser (as defined in the Note).
8.2 Governing Law;
Venue. This
Agreement, the Note(s), the Warrants and/or all acts and
transactions pursuant hereto and thereto and the rights and
obligations of the parties hereto and thereto shall be governed,
construed and interpreted in accordance with the laws of the State
of Texas, without giving effect to principles of conflicts of law.
This Agreement, the Note(s), the Warrants and/or any other
Transaction Document have been entered into in Dallas County, Texas
and are performable for all purposes in Dallas County, Texas. The
parties hereby agree that any lawsuit, action, or proceeding that
is brought (whether in contract, tort or otherwise) arising out of
or relating to this Agreement, the Note(s), the Warrants and/or any
other Transaction Document or the transactions contemplated hereby
and thereby, or the actions of any Purchaser in the negotiation,
administration or enforcement of this Agreement, the Note(s), the
Warrants and/or any other Transaction Document shall be brought in
a state or federal court of competent jurisdiction located in the
Northern District of Texas. Each of the parties hereto irrevocably
and unconditionally (a) submits to the exclusive jurisdiction of
such courts, (b) waives any objection it may now or hereafter have
as to the venue of any such lawsuit, action or proceeding brought
in any such court, and (c) further waives any claim that it may now
or hereafter have that any such court is an inconvenient
forum.
8.3 Counterparts;
Telecopy Signatures.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one instrument. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more
parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar
electronic transmission device (including DocuSign, adobe acrobat
or otherwise) pursuant to which the signature of or on behalf of
such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the
request of any party hereto, all parties hereto agree to execute an
original of this Agreement as well as a facsimile, telecopy or
other reproduction hereto.
8.4 Titles and
Subtitles. The titles
and subtitles used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this
Agreement.
8.5 Notices.
All notices and other communications given or made pursuant to this
Agreement, the Note(s) and/or the Warrants shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic
mail if sent during normal business hours of the recipient, and if
not, then on the next business day, (c) five days after having been
sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent
to a Purchaser at the address or email address as set forth on
Exhibit A hereto,
or at such other place as may be designated by such Purchaser in
writing to the Company, and to the Company at the address or email
address set forth on the Company’s signature page below, or
to such e-mail address or address as subsequently modified by
written notice given in accordance with this Section 8.5. If notice is given
to the Company, a copy, which itself shall not constitute notice,
shall also be sent to Xxxxx X. Xxxxx, c/x Xxxxxx & Xxxxx, LLP,
500 X. Xxxxx, 0000 Xxxx Xxxxx, Xxxxxx, Xxxxx 00000, xxxxx.xxxxx@xxxxxxxxxxxx.xxx.
8.6 Fees and
Expenses. Each
party hereto shall be responsible for the fees and disbursements of
attorneys, accountants, consultants and any other representative or
agent retained by such party in regard to this Agreement;
provided that at
the Closing, the Company shall pay the reasonable fees and expenses
of Xxxxxx and Xxxxx, LLP, the counsel for the Lead Purchaser, in an
amount not to exceed, in the aggregate, $100,000.
8.7 Attorney’s
Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements in
addition to any other relief to which such party may be
entitled.
8.8 Amendments and
Waivers. Any term of
this Agreement may be amended or waived only with the written
consent of the Company and a majority of the Purchasers, which
majority shall include the Lead Purchaser for so long as the GP
Warrant and/or any principal remains outstanding under the Lead
Purchaser’s Note(s). Any amendment or waiver effected in
accordance with this Section 8.8 shall be
binding upon the Purchasers and each transferee of the Securities,
each future holder of all such Securities, and the
Company.
8.9 Severability.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (a) such provision shall
be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so
excluded and (c) the balance of the Agreement shall be
enforceable in accordance with its terms.
8.10 Delays
or Omissions. No
delay or omission to exercise any right, power or remedy accruing
to any party under this Agreement, upon any breach or default of
any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor
shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
8.11 Entire
Agreement. This
Agreement, and the documents referred to herein and referred to in
the Transaction Documents constitute the entire agreement between
the parties hereto pertaining to the subject matter hereof and
thereof, and any and all other written or oral agreements relating
to the subject matter hereof and thereof existing between the
parties hereto are expressly canceled.
8.12 Waiver
of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, EACH
PURCHASER IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTE(S), THE WARRANT AND/OR ANY OTHER TRANSACTION
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER
OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, OR
ENFORCEMENT HEREOF OR THEREOF. EACH OF THE COMPANY AND, BY ITS
ACCEPTANCE HEREOF, EACH PURCHASER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE NOTE(S), THE
WARRANT AND/OR ANY OTHER TRANSACTION DOCUMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.12.
8.13 Survival.
Unless otherwise set forth in this Agreement, the representations
and warranties and covenants of the Company and the Purchasers
contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the
Closing.
[Signature Pages Follow]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
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COMPANY:
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DYNARESOURCE,
INC.
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By:
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Name:
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Title:
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Address:
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000 X. Xxx Xxxxxxx
Xxxx.
Xxxxx 0000 Xxxxx
Xxxxx
Xxxxxx,
XX 00000 |
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
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LEAD
PURCHASER:
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GOLDEN
POST RAIL, LLC
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By:
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Name:
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Title:
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
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PURCHASER:
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[______]
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By:
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Name:
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Title:
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EXHIBITS
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Exhibit A
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Schedule of
Purchasers
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Exhibit
B
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Form of
Note
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Exhibit
C-1
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Form of GP
Warrant
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Exhibit
C-2
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Form of Remaining
Warrant
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Exhibit
D
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Budget
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Exhibit
E
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Draw
Summary
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Exhibit
F
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Disclosure
Schedule
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Exhibit
G
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Exception to Use of
Proceeds
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EXHIBIT A
SCHEDULE OF PURCHASERS
Closing:
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Name and Address
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Note Principal Amount
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Warrant Shares
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Closing Date
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Funding Date
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Golden
Post Rail, LLC
0000
Xxxx Xxx Xxxxx
Xxxxxxxx,
Xxxxx 00000
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$2,500,000
(of which $___________ was initially drawn on the Closing
Date).
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783,975
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May
___, 2020
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May
___, 0000
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Xxxxxx
Xxxxxx
0
Xxxxxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxx XX 0000
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$1,000,000
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313,591
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May
___, 2020
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$500,000
was initially funded on March 24, 2020, and $500,000 was fully
funded on April 13, 2020
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Xxx
Xxxxxxxxx
0000
Xxxxx Xxx Xxxxx
Xxxxxxx
XX 00000
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$50,000
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15,679
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May
___, 2020
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March
10, 2020
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Xx.
Xxxxx Xxxxxx
0000
Xxxxxx Xxxxxx Xxxxx
Xxxxxx,
XX 00000
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$50,000
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15,679
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May
___, 2020
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March
2, 2020
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Xxxx
Xxxxxxx
00 Xxxx
Xxxxx
Xxxxxxx
XX 00000
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$100,000
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31,359
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May
___, 2020
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March
9, 2020
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Xxx
Xxxx
0000
Xxxx Xxxxx Xxxxx
Xxxxxx
XX 00000
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$200,000
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62,718
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May
___, 2020
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February
24, 2020
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Total:
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$3,900,000
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1,223,001
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EXHIBIT B
FORM OF NOTE
EXHIBIT C-1
FORM OF GP WARRANT
EXHIBIT C-2
FORM OF REMAINING WARRANT
EXHIBIT D
BUDGET
EXHIBIT E
DRAW SUMMARY
EXHIBIT F
DISCLOSURE SCHEDULE
EXHIBIT G
EXCEPTION TO USE OF PROCEEDS
Solely
with respect to the proceeds of the Notes issued to Purchasers
(other than the Lead Purchaser), use of such proceeds to repay the
following convertible promissory note:
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Notes Payable
Rollforward
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March 31,
2020
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Date
of
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Date
of
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Accured
Interest
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Name
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Original
Note
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Extension
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Due
Date
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Interest
Rate
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Balance
03/31/20
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3/31/2020
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NOTE I
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Xxxxx, Xxxxx
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4/10/13
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3/31/20
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12/31/20
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12.50%
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246,533.30
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7,470.70
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