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Form SC 13D/A DYNARESOURCE INC Filed by: Golden Post Rail, LLC

June 30, 2022 4:31 PM EDT

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3)*

 

 

DYNARESOURCE, INC.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

268073 10 3

(CUSIP Number)

Matthew K. Rose

1110 Post Oak Place

Westlake, Texas 76262

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 28, 2022

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

 

 

* 

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (“Act”), or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 268073 10 3

 

  1.    

  Names of Reporting Person

 

  Golden Post Rail, LLC

  2.  

  Check the Appropriate Box if a Member of a Group (See Instructions)

  (a)  ☐        (b)  ☐

 

  3.  

  SEC Use Only

 

  4.  

  Source of Funds (See Instructions)

 

  WC

  5.  

  Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  ☐

  6.  

  Citizenship or Place of Organization

 

  Texas

Number of

Shares

 Beneficially 

Owned by

Each

Reporting

Person

With

 

     7.     

  Sole Voting Power

 

  2,655,361

     8.   

  Shared Voting Power

 

  0

     9.   

  Sole Dispositive Power

 

  2,655,361

   10.   

  Shared Dispositive Power

 

  0

11.    

  Aggregate Amount Beneficially Owned by Each Reporting Person

 

  2,655,361

12.  

  Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

  ☐

13.  

  Percent of Class Represented by Amount in Row (11)

 

  12.8% (1)

14.  

  Type of Reporting Person (See Instructions)

 

  OO

 

(1)

Based upon 18,091,293 shares of the Common Stock outstanding as of March 31, 2022, as disclosed in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022, that was filed by the Issuer with the Securities and Exchange Commission on May 6, 2022, and an aggregate of 2,655,361 shares of Common Stock issued to Golden Post upon the exercise of the Replacement Warrant.


CUSIP No. 268073 10 3

 

  1.    

  Names of Reporting Person

 

  Matthew K. Rose

  2.  

  Check the Appropriate Box if a Member of a Group (See Instructions)

  (a)  ☐        (b)  ☐

 

  3.  

  SEC Use Only

 

  4.  

  Source of Funds (See Instructions)

 

  PF

  5.  

  Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

  ☐

  6.  

  Citizenship or Place of Organization

 

  United States of America

Number of

Shares

 Beneficially 

Owned by

Each

Reporting

Person

With

 

     7.     

  Sole Voting Power

 

  2,655,361

     8.   

  Shared Voting Power

 

  0

     9.   

  Sole Dispositive Power

 

  2,655,361

   10.   

  Shared Dispositive Power

 

  0

11.    

  Aggregate Amount Beneficially Owned by Each Reporting Person

 

  2,655,361

12.  

  Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

 

  ☐

13.  

  Percent of Class Represented by Amount in Row (11)

 

  12.8% (1)

14.  

  Type of Reporting Person (See Instructions)

 

  IN; HC

 

(1)

Based upon 18,091,293 shares of the Common Stock outstanding as of March 31, 2022, as disclosed in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022, that was filed by the Issuer with the Securities and Exchange Commission on May 6, 2022, and an aggregate of 2,655,361 shares of Common Stock issued to Golden Post upon the exercise of the Replacement Warrant.


This Amendment No. 3 to Schedule 13D (this “Amendment”) relates to shares of common stock, par value $0.01 per share (the “Common Stock”), of DynaResource, Inc., a Delaware corporation (the “Issuer”). This Amendment amends the Schedule 13D, as previously amended (as amended, the “Schedule 13D”) filed with the Securities and Exchange Commission (“SEC”), by Golden Post Rail, LLC, a Texas limited liability company (“Golden Post”), and Matthew K. Rose, a United States citizen, by furnishing the information set forth below. Except as otherwise specified in this Amendment, all previous Items are unchanged. Capitalized terms used herein which are not defined herein have the meanings given to them in the Schedule 13D, as previously amended, filed with the SEC.

Item 3. Source and Amount of Funds or other Consideration

Item 3 is hereby amended and supplemented as follows:

“On June 28, 2022, Golden Post and the Issuer entered into a warrant exercise agreement (the “Warrant Exercise Agreement”), pursuant to which Golden Post exercised the Replacement Warrant in full for an aggregate exercise price of $5,416,936.44 and received 2,655,361 shares of Common Stock. Pursuant to the Warrant Exercise Agreement, the shares of Common Stock issued to Golden Post upon its exercise of the Replacement Warrant are subject to any and all anti-dilution protections afforded with respect to the Warrant; however, Golden Post agreed to consider in good faith waiving such anti-dilution protections in certain circumstances, as further described in the Warrant Exercise Agreement. In addition, pursuant to the Warrant Exercise Agreement, Golden Post waived certain breaches by the Issuer of the Purchase Agreement, and the Issuer agreed to, among other things, comply with certain corporate governance practices, including establishing a compensation committee of the board of directors, a member of which must be the director designated by the holders of the Series C Preferred Stock, and adopting and maintaining a related party transactions policy.

The foregoing description of the Warrant Exercise Agreement does not purport to be complete and is qualified in its entirety by reference to the Warrant Exercise Agreement attached as Exhibit 99.17 hereto, which is incorporated by reference herein.

In connection with entering into the Warrant Exercise Agreement, the Issuer advised the Reporting Persons that the number of shares of Common Stock for which the Replacement Warrant was exercisable equaled an aggregate total of 2,655,361 shares of Common Stock, and that, as a result of various dilutive issuances by the Issuer, the exercise price of the Replacement Warrant decreased to $2.04 per share. As a result of a clerical error, the Reporting Persons had previously disclosed this number in this Schedule 13D as 2,658,081 shares of Common Stock. In addition, as a result of various dilutive issuances by the Issuer, the Issuer advised the Reporting Persons that (i) with respect to the Series C Preferred Stock, the conversion price has decreased to $2.04 per share and the number of shares of Common Stock issuable upon conversion of the Series C Preferred Stock increased by an aggregate of 182,754 shares of Common Stock, and (ii) with respect to the Compensatory Warrant, the exercise price has decreased to $2.04 per share and the number of shares of Common Stock issuable upon exercise of the Compensatory Warrant increased by an aggregate of 16 shares of Common Stock. The aggregate number of shares of Common Stock underlying the Series C Preferred Stock also may include additional shares of Common Stock that may be issuable upon any conversion of Series C Preferred Stock as a result of accrued and unpaid dividends as of the applicable conversion date. Such increases in the number of shares of Common Stock underlying the Series C Preferred Stock and the Compensatory Warrant resulted from anti-dilution adjustments pursuant to the terms thereof, and no additional consideration was paid by any of the Reporting Persons in connection therewith.

The foregoing descriptions of the Series C Preferred Stock, the Replacement Warrant and the Compensatory Warrant and the anti-dilution adjustments thereto do not purport to be complete and are qualified in their entirety by reference to the Certificate of Designations, the Warrant and the Compensatory Warrant attached as Exhibits 99.8, 99.9 and 99.11, respectively, to this Schedule 13D, which are incorporated by reference herein.”

Item 4. Purpose of Transaction

Item 4 is hereby amended and supplemented as follows:

“The information set forth in Item 3 of this Amendment is incorporated by reference into this Item 4.”


Item 5. Interest in Securities of the Issuer

Item 5 is hereby amended and restated in its entirety as follows:

“(a) The aggregate number and percentage of the class of securities identified pursuant to Item 1 beneficially owned by the Reporting Persons is stated in Items 11 and 13 on the cover page(s) hereto.

The Reporting Persons declare that neither the filing of this Schedule 13D nor anything herein shall be construed as an admission that such persons are, for the purposes of Section 13(d) or 13(g) of the Act or any other purpose, the beneficial owner of any securities covered by this Schedule 13D.

(b) Number of Shares as to which each Reporting Person has:

 

  (i)

sole power to vote or to direct the vote:

See Item 7 on the cover page(s) hereto.

 

  (ii)

shared power to vote or to direct the vote:

See Item 8 on the cover page(s) hereto.

 

  (iii)

sole power to dispose or to direct the disposition of:

See Item 9 on the cover page(s) hereto.

 

  (iv)

shared power to dispose or to direct the disposition of:

See Item 10 on the cover page(s) hereto.

As of the date hereof, the Reporting Persons do not own any Shares other than as set forth in this Item 5.

(c) Transactions in the class of securities reported on that were effected by the Reporting Persons during the past sixty days or since the most recent filing of Schedule 13D, whichever is less, are described below:

The portions of Item 3 of this Amendment that relate to the exercise by Golden Post of the Replacement Warrant are incorporated by reference into this Item 5(c).

(d) Not applicable.

(e) Not applicable.”

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 is hereby amended and supplemented as follows:

“The information set forth in each of Item 3 and Item 4 of this Amendment is incorporated by reference into this Item 6.”

Item 7. Material to be Filed as Exhibits

Item 7 is hereby amended and restated in its entirety as follows:

“The following exhibits are filed as exhibits to this Schedule 13D:


Exhibit

  

Description of Exhibit

99.1

   Joint Filing Agreement, dated as of July 10, 2015, by and between Golden Post Rail, LLC and Matthew K. Rose, incorporated by reference to Exhibit 99.1 to the Reporting Persons’ Schedule 13D, filed with the Securities and Exchange Commission on July 10, 2015.

99.2

   Securities Purchase Agreement, dated as of May 6, 2015, by and among DynaResource, Inc., Golden Post Rail, LLC and Koy W. Diepholz, incorporated by reference to Exhibit 10.1 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 8, 2015.

99.3

   Certificate of Amendment to Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on June 29, 2015, incorporated by reference to Exhibit 3.1 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 7, 2015.

99.4

   Promissory Note, dated as of May 6, 2015, made by DynaResource, Inc. to Golden Post Rail, LLC, incorporated by reference to Exhibit 4.1 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 8, 2015.

99.5

   Limited Consent Agreement, effective as of June 17, 2015, by and between DynaResource, Inc. and Golden Post Rail, LLC, incorporated by reference to Exhibit 99.5 to the Reporting Persons’ Schedule 13D, filed with the Securities and Exchange Commission on July 10, 2015.

99.6

   Registration Rights Agreement, dated as of June 30, 2015, by and between DynaResource, Inc. and Golden Post Rail, LLC, incorporated by reference to Exhibit 4.2 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 7, 2015.

99.7

   Co-Sale Agreement, dated as of June 30, 2015, by and among DynaResource, Inc., Golden Post Rail, LLC, and certain stockholder signatories thereto, incorporated by reference to Exhibit 99.7 to the Reporting Persons’ Schedule 13D, filed with the Securities and Exchange Commission on July 10, 2015.

99.8

   Certificate of Designations of Series C Senior Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on June 29, 2015, incorporated by reference to Exhibit 3.2 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 7, 2015.

99.9

   Warrant, dated June 30, 2015, incorporated by reference to Exhibit 99.9 to the Reporting Persons’ Schedule 13D, filed with the Securities and Exchange Commission on July 10, 2015.

99.10

   Certificate of Increase of Series C Senior Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on May 13, 2020, incorporated by reference to Exhibit 3.1 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.11

   Warrant, dated May 13, 2020, incorporated by reference to Exhibit 4.7 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.12

   Note Purchase Agreement, dated as of May 14, 2020, by and among DynaResource, Inc., Golden Post Rail, LLC and the other parties listed on Exhibit A thereto, incorporated by reference to Exhibit 10.1 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.13

   Convertible Promissory Note, dated May 14, 2020, incorporated by reference to Exhibit 4.1 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.14

   Certificate of Designations of Series D Senior Convertible Preferred Stock, filed with the Secretary of State of the State of Delaware on May 13, 2020, incorporated by reference to Exhibit 3.2 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.15

   Warrant, dated May 14, 2020, incorporated by reference to Exhibit 4.3 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.16

   Amended and Restated Registration Rights Agreement, dated as of May 14, 2020, by and between DynaResource, Inc. and Golden Post Rail, LLC, incorporated by reference to Exhibit 4.8 to DynaResource, Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 20, 2020.

99.17*

   Warrant Exercise Agreement, dated as of June 28, 2022, by and between DynaResource, Inc. and Golden Post Rail, LLC.”

 

*

Filed herewith.


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: June 30, 2022     Matthew K. Rose
    By:  

/s/ Matthew K. Rose

    Name:   Matthew K. Rose
    Golden Post Rail, LLC
    By:  

/s/ Matthew K. Rose

    Name:   Matthew K. Rose
    Title:   Manager, President, Secretary and Treasurer

Exhibit 99.17

Execution Version

WARRANT EXERCISE AGREEMENT

This Warrant Exercise Agreement (this “Agreement”), dated as of June 28, 2022 (the “Effective Date”), is by and between DynaResource, Inc., a Delaware corporation (the “Company”), and Golden Post Rail, LLC, a Texas limited liability company (“Golden Post”). Capitalized terms not defined in this Agreement shall have the meanings ascribed to such terms in the Replacement Warrant (as defined below).

WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as of May 6, 2015, by and among the Company, Golden Post and K.D. Diepholz (the “SPA”), the Company issued Golden Post, among other things, a warrant initially representing the right to purchase 2,166,527 shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) at an initial exercise price of $2.50 per share (the “Original Warrant”);

WHEREAS, pursuant to the Original Warrant (as amended by the First Amendment to Common Stock Purchase Warrant, dated May 14, 2020), on July 1, 2020, the Company issued Golden Post a replacement warrant representing the right to purchase 2,655,361 shares of Common Stock upon the same terms as the Original Warrant (the “Replacement Warrant”);

WHEREAS, Golden Post is also the holder of 1,734,992 shares of Series C Senior Convertible Preferred Stock of the Company, par value $0.0001 per share (the “Series C Preferred”), and a warrant representing the right to purchase 2,724 shares of Common Stock at an exercise price of $2.04 per share (the “Antidilution Warrant”);

WHEREAS, Section 3.12 of the SPA provides that the Company shall not change the compensation of the executive officers of the Company, including approving any option grant or granting any bonus, without the approval of the Board of Directors of the Company (the “Board”), which approval must include the affirmative vote of the director appointed by the holders of the Series C Preferred (the “Series C Designated Director”);

WHEREAS, effective November 15, 2021, the Company, through its subsidiary, transferred to K.D. Diepholz, the Company’s Chief Executive Officer, 400,000 shares of Common Stock (the “CEO Award”), and during 2021, the Company paid Mr. Diepholz a cash bonus of $224,375 (the “CEO Cash Bonus”), in each case without having first obtained the approval of the Board or the Series C Designated Director pursuant to Section 3.12 of the SPA;

WHEREAS, immediately prior to the execution of this Agreement, the Series C Designated Director executed a Unanimous Written Consent of the Board ratifying the grant of the CEO Award; and

WHEREAS, Golden Post wishes to exercise the Replacement Warrant and approve (via a waiver) the CEO Award and the CEO Cash Bonus, as set forth in further detail below, in exchange for certain agreements by the Company with respect to its corporate governance practices.


NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and Golden Post hereby agree as follows:

Section 1. Exercise of Replacement Warrant.

(a) The Company and Golden Post hereby agree that effective as of June 28, 2022 (the “Warrant Exercise Date”), Golden Post shall exercise the Replacement Warrant with respect to the number of Total Issuable Warrant Shares set forth on Golden Post’s signature page hereto at an exercise price per share equal to $2.04, pursuant to the terms of the Replacement Warrant (the “Warrant Exercise”).

(b) Golden Post shall execute and deliver to the Company the Warrant Exercise Notice with respect to the Warrant Exercise and deliver the aggregate cash exercise price for such exercise of the Replacement Warrant to the bank account set forth on the Company’s signature page hereto within two (2) Trading Days after the Warrant Exercise Date, and the Company shall deliver the Warrant Shares, registered in the name of Golden Post, pursuant to the instructions set forth on Golden Post’s signature page hereto.

Section 2. Anti-Dilution Protections.

(a) Existing Anti-Dilution Protections. For the avoidance of doubt, the Replacement Warrant, the Antidilution Warrant and the shares of Common Stock delivered upon exercise of the Replacement Warrant and the Antidilution Warrant are subject to any and all anti-dilution protections afforded with respect to the Original Warrant, including, without limitation, the anti-dilution protections set forth in Section 3.13 of the SPA.

(b) Future Company Equity Awards. Golden Post hereby agrees to consider in good faith waiving certain anti-dilution protections afforded to the Company’s securities held by Golden Post, including, without limitation, those granted under the Certificate of Designations of the Series C Preferred, the SPA, the Replacement Warrant and the Antidilution Warrant, in connection with the Company’s award of equity (the “Company Equity Awards”) in the 90 days following the Effective Date of this Agreement; provided that the Company Equity Awards are approved by a committee comprised of two or more “non-employee directors” (as such term is defined in Rule 16b-3 (“Rule 16b-3”) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that are not officers of the Company or a parent or subsidiary of the Company, one of which must be the Series C Designated Director, following the receipt of recommendations of an independent compensation consultant to the Company that such Company Equity Awards be issued.

Section 3. Limited Waiver. The requirements of Section 3.12 of the SPA are hereby waived solely as they relate to the CEO Award and the CEO Cash Bonus. This waiver shall be limited precisely as written and relates solely to the provisions of Section 3.12 of the SPA in the manner and to the extent described above, and nothing in this waiver shall be deemed to constitute a waiver by Golden Post of compliance with respect to any other term, provision, or condition of the SPA or any other agreement between the Company and Golden Post or any other instrument or agreement referred to therein. Nothing contained in this waiver will be deemed or construed to amend, supplement, or modify the SPA (including, without limitation, the provisions of Section 3.12 thereof) or otherwise affect the rights and obligations of any party thereto, all of which remain in full force and effect.

 

2


Section 4. Corporate Governance Practices.

(a) Series C Designated Director Approval. Following the Effective Date, the Company agrees not to take any action that would require the approval of the Board, including the Series C Designated Director, without first obtaining such approval.

(b) Compensation Committee. The Company agrees to form and maintain a compensation committee of the Board comprised of two or more “non-employee directors” (as such term is defined in Rule 16b-3) that are not officers of the Company or a parent or subsidiary of the Company, one of which must be the Series C Designated Director for so long as Golden Post has the right to appoint the Series C Designated Director.

(c) Related Party Transactions Policy. The Board shall adopt and maintain a policy that requires the approval of related party transactions by the compensation committee of the Board.

(d) Use of Company Securities Counsel. The Company agrees to engage outside securities counsel to review each Annual Report on Form 10-K, Quarterly Report on Form 10-Q and Current Report Form 8-K required to be filed by the Company with the Commission for compliance with the Exchange Act and any applicable stock exchange requirements prior to filing such report.

(e) 2021 Form 10-K. The Company agrees to refile the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (the “2021 Form 10-K”) as soon as reasonably practicable following the review of the 2021 Form 10-K by the Company’s outside securities counsel, and such report shall comply with the disclosure requirements of Form 10-K and be signed by a majority of the members of the Board.

Section 5. Representations and Warranties of the Company. The Company hereby makes the representations and warranties set forth below to Golden Post that as of the Effective Date:

(a) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in connection therewith. This Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

3


(b) Organization. The Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.

(c) No Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien upon any of the properties or assets of the Company, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding to which the Company is a party or by which any property or asset of the Company is bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected.

(d) Issuance of Warrant Shares. The Warrant Shares when issued will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issuance thereof, with Golden Post being entitled to all rights accorded to a holder of Common Stock.

Section 6. Representations and Warranties of Golden Post. Golden Post hereby makes the representations and warranties set forth below to the Company that as of the Effective Date:

(a) Due Authorization. Golden Post represents and warrants that (i) the execution and delivery of this Agreement by it and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on its behalf and (ii) this Agreement has been duly executed and delivered by Golden Post and constitutes the valid and binding obligation of Golden Post, enforceable against it in accordance with its terms.

(b) No Conflicts. The execution, delivery and performance of this Agreement by Golden Post and the consummation by Golden Post of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of Golden Post’s organizational or charter documents or (ii) conflict with or result in a violation of any agreement, law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority which would interfere with the ability of Golden Post to perform its obligations under this Agreement.

Section 7. Survival. All representations and warranties (as of the date such representations and warranties were made) made herein shall be considered to have been relied upon by the parties hereto and shall survive the issuance of the Warrant Shares. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties; provided, however, that no party may assign this Agreement or the obligations and rights of such party hereunder without the prior written consent of the other party hereto.

 

4


Section 8. Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof.

Section 9. Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby, and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

Section 10. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas, without giving effect to any of the conflict of laws principles that would result in the application of the substantive law of another jurisdiction.

Section 11. Entire Agreement. This Agreement, together with the exhibits hereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents and exhibits.

Section 12. Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

*******************

 

5


IN WITNESS WHEREOF, the undersigned has executed this Warrant Exercise Agreement as of the date first written above.

 

COMPANY:
DYNARESOURCE, INC.
By:  

/s/ K.W. (“K.D.”) Diepholz

Name:   KD. Diepholz
Title:   CEO
Bank Account and Wire Instructions:

Signature Page to Warrant Exercise Agreement


IN WITNESS WHEREOF, the undersigned has executed this Warrant Exercise Agreement as of the date first written above.

 

GOLDEN POST RAIL, LLC
By:  

/s/ Matthew K. Rose

Name:   Matthew K. Rose
Title:   Manager, President, Secretary and Treasurer

 

Total Issuable Warrant Shares

underlying Replacement

Warrant to be exercised:

   2,655,361

Aggregate Exercise Price of Replacement

Warrant to be Exercised:

   $5,416,936.44
Warrant Shares:    2,655,361

Delivery Instructions for Warrant Shares:                                                                                                                                                        

Signature Page to Warrant Exercise Agreement



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