SECURITIES AND EXCHANGE COMMISSION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by the Registrant
[X]☒
Filed by a party other than the Registrant
[_]☐
Check the appropriate box:
[X]
☒ Preliminary Proxy Statement
[_]
☐ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
[_]
☐ Definitive Proxy Statement
[_]
☐ Definitive Additional Materials
[_]
☐ Soliciting Material under Rule 14a-12
(Name of the Registrant as Specified In Its Charter)Charter
) Payment of Filing Fee (Check the appropriate box):
[X]
☐ Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1.
Title of each class of securities to which
the transaction applies:
2.
Aggregate number of securities to which
the transaction applies:
3.
Per unit price or other underlying value of
the transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
4.
Proposed maximum aggregate value of
the transaction:
☐ Fee paid previously with preliminary materials.
[ ]
☐ Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
2.
Form, Schedule or Registration Statement No.:
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd. / Suite
744 East1910 North Tower
Las Colinas / Irving, TX 75039
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To the Stockholders of DynaResource, Inc.:
A special meeting (the “Special Meeting”) of stockholders of DynaResource, Inc., a Delaware corporation (the “Company”) will be held at the Company’s office, located in The Urban Towers of Las Colinas, at 222 W. Las Colinas Blvd., Suite 744 East1910 North Tower, Irving, Texas 75039, on Friday, June 26, 2015,Monday, July 13, 2020, at 3:00 PM Central Standard Time.In light of current circumstances and various restrictions that are being imposed because of COVID-19, it may become necessary to change the venue of the meeting. Any such change will be announced in a Form 8-K filed with the Securities and Exchange Commission (the “SEC”). The meeting will be convened for the following purposes: | (1) | To amend the Certificate of Incorporation of the Company, as amended to date, to provide that the Board of Directors will be divided into three classes of directors – Class I Directors, Class II Directors and Class III Directors – with the Class III director to be selected by the holder of the Series C Senior Convertible Preferred Stock of the Corporation; and |
| (2) | To amend the Certificate of Incorporation of the Company, as amended to date, to provide that to the fullest extent permitted by the Delaware General Corporation Law, a director of the Company will not be liable to theCompanyor its stockholders for monetary damages for breach of fiduciary duty as a director; and |
| (3) | To transact any other business as may properly come before the Special Meeting or any adjournment or postponement thereof. |
(1)
To amend the Certificate of Incorporation of the Company, as amended to date, to increase the number of authorized shares of Common Stock from 25,000,000 shares to 40,000,000 shares; and
(2)
To amend the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and Other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock (“Series C Preferred Certificate of Designations”) of the Company, in order to (a) extend the maturity date of the Series C Preferred by an additional two (2) years, (ii) add an equity cap in respect of the conversion of Series C Senior Convertible Preferred Stock (“Series C Preferred”) into Common Stock of the Company, and (iii) add certain restrictions on the ability of the Company to issue Series C Preferred; and
(3)
To transact any other business as may properly come before the Special Meeting or any adjournment or postponement thereof.
Even if you expect to attend the Special Meeting, you are requested to mark, sign, date, and return the accompanying proxy card by fax or by mail. If you attend the Special Meeting, you may vote in person, whether or not you have sent in your proxy. A proxy may be revoked at any time prior to the voting thereof.
| By Order of the Board of Directors | |
| | |
| | |
| /s/ K.W. (“K.D.”) Diepholz | |
| K.W. (“K.D.”) Diepholz | |
| Chairman and Chief Executive Officer | |
| May 13, 2015 | |
| | |
By Order of the Board of Directors
/s/ K.W. (“K.D.”) Diepholz
K.W. (“K.D.”) Diepholz
Chairman and Chief Executive Officer
May 29, 2020
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd. / Suite
744 East1910 North Tower
Las Colinas / Irving, TX 75039
This Proxy Statement is furnished to the stockholders of DynaResource, Inc., a Delaware corporation (the “Company”) in connection with the solicitation on behalf of the Board of Directors (the “Board”) of proxies for use at the special meeting of stockholders (the “Special Meeting”) to be held at the Company’s offices, located in The Urban Towers of Las Colinas, at 222 W. Las Colinas Blvd., Suite 744 East1910 North Tower, Irving, Texas 75039, on Friday, June 26, 2015,Monday, July 13, 2020, at 3:00 PM Central Standard Time.In light of current circumstances and various restrictions that are being imposed because of COVID-19, it may become necessary to change the venue of the meeting. Any such change will be announced in a Form 8-K filed with the Securities and Exchange Commission (the “SEC”).
This Proxy Statement and the enclosed form of proxy are first being made available to stockholders on or about May 25, 2015,June 3, 2020, and the cost of soliciting proxies in the enclosed form will be borne by the Company. Proxies may be solicited by officers, directors, and employees of the Company, by personal interview, telephone, facsimile and electronic means.The Company will pay the officers, directors, and employees no additional compensation for these services. Banks, brokerage houses and other nominees or fiduciaries have been requested to forward the soliciting material to their principals and to obtain authorization for the execution of proxies, and the Company will, upon request, reimburse them for their expenses in so acting. QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS
Q:
What is the purpose of the Special Meeting?
A:
The Special Meeting is being held to permit our stockholders to consider and vote upon the following:
| (1) | An amendment of the Certificate of Incorporation of the Company, as amended to date, to provide that the Board of Directors will be divided into three classes of directors – Class I Directors, Class II Directors and Class III Directors – with the Class III director to be selected by the holder of the Series C Senior Convertible Preferred Stock of the Corporation; and |
| (2) | An amendment of the Certificate of Incorporation of the Company, as amended to date, to provide that to the fullest extent permitted by the Delaware General Corporation Law, a director of the Company will not be liable to theCompany or its stockholders for monetary damages for breach of fiduciary duty as a director. |
(1)
An amendment of the Certificate of Incorporation of the Company, as amended to date, to increase the number of authorized shares of Common Stock from 25,000,000 shares to 40,000,000 shares; and
(2)
An amendment of the Series C Senior Convertible Preferred Stock of the Company, in order to (a) extend the maturity date of the Series C Preferred by an additional two (2) years, (ii) add an equity cap in respect of the conversion of Series C Preferred into Common Stock of the Company, and (iii) add certain restrictions on the ability of the Company to issue Series C Preferred.
Q:
What is the Board’s Recommendation regarding these proposals?
| A: | The Board’s recommendations are set forth below together with a description of the proposals in this Proxy Statement. In summary, the Board recommends that you vote: |
A:
We sent you this proxy statement and the enclosed proxy card because the Board of Directors of the Company is soliciting your proxy to vote at the Special Meeting. The Board’s recommendations are set forth together with a description of the proposals in this Proxy Statement. In summary, the Board recommends that you vote:
●
FORthe amendment of the Certificate of Incorporation of the Company to provide thatincrease the Boardnumber of Directors will be divided into three classesauthorized shares of directors – Class I Directors, Class II DirectorsCommon Stock from 25,000,000 shares to 40,000,000 shares; and Class III Directors – with ●
FOR the Class III director to be selected by the holderamendment of the Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and Other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock of the Corporation; and
FORCompany, in order to (a) extend the amendmentmaturity date of the CertificateSeries C Preferred by an additional two (2) years, (ii) add an equity cap in respect of Incorporationthe conversion of Series C Preferred into Common Stock of the Company, and (iii) add certain restrictions on the ability of the Company to provide that to the fullest extent permitted by the Delaware General Corporation Law, a director of the Company will not be liable to theCompanyor its stockholders for monetary damages for breach of fiduciary duty as a director.issue Series C Preferred.
Q:
Who is entitled to vote at the Special Meeting?
| A: | Only holders of record of shares of Common Stock as of the close of business (5:00 p.m., Eastern Standard Time) on May 15, 2015, the record date fixed by the Board (the “Record Date”), will be entitled to receive notice of and to vote at the Special Meeting. As of May 15, 2015, there were 15,295,663 shares of Common Stock outstanding, of which 13,212,330 shares of Common Stock are entitled to vote. As a point of information, the 2,083,333 shares of Common Stock held by Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, are neither counted for purposes of a quorum, nor entitled to vote.To facilitate the amendment of theCertificate of Incorporation of the Company, a limited number of stockholders of the Company have executed a Voting and Support Agreement among the stockholders who are signatories thereto (10 in total), the Company, and Golden Post Rail, LLC. |
A:
For Proposal No. 1, only holders of record of shares of Common Stock as of the close of business (5:00 p.m., Eastern Standard Time) on May 14, 2020, the record date fixed by the Board (the “Record Date”), will be entitled to receive notice of and to vote on Proposal No. 1 at the Special Meeting. As of May 14, 2020, 17,722,825 shares of Common Stock were outstanding, of which 17,218,525 shares of Common Stock are entitled to vote. As a point of information, the 504,300 shares of Common Stock held by Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, are neither counted for purposes of a quorum, nor entitled to vote.
For Proposal No. 2, the holders of the shares of Series C Preferred will vote on an “as converted” basis, together with the holders of the shares of Common Stock, as a single class. Each holder of Series C Preferred is be entitled to the number of votes equal to the number of Common Shares into which such holder’s shares of Series C Preferred could be converted. Accordingly, holders of record of shares of Common Stock and shares of Series C Preferred as of the close of business on the Record Date will be entitled to receive notice of and to vote on Proposal No. 2 at the Special Meeting. As of May 14, 2020, 17,722,825 shares of Common Stock were outstanding, of which 17,218,525 shares of Common Stock are entitled to vote. The 504,300 shares of Common Stock held by Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, are neither counted for purposes of a quorum, nor entitled to vote. Also as of May 14, 2020, 1,734,992 shares of Series C Preferred were outstanding, convertible into an aggregate of 2,450,363 shares of Common Stock.
Q:
What shares can I vote?
| A: | You may vote all shares of the Company’s Common Stock owned by you as of the close of business on the Record Date. You may cast one vote per share of Common Stock that you held on the Record Date. A list of record stockholders entitled to vote at the Special Meeting will be available during ordinary business hours at the Company’s principal executive offices located at 222 W. Las Colinas Blvd., Suite 744 East Tower, Irving, Texas 75039, for a period of at least 10 days prior to the Special Meeting. |
A:
You may vote all shares of the Company’s Common Stock owned by you, or issuable upon conversion of the Company’s Series C Preferred you own, in each instance as of the close of business on the Record Date. You may cast one vote per share of Common Stock that you held or were entitled to receive upon conversion of Series C Preferred on the Record Date. A list of record stockholders entitled to vote at the Special Meeting will be available during ordinary business hours at the Company’s principal executive offices located at 222 W. Las Colinas Blvd., Suite 1910 North Tower, Irving, Texas 75039, for a period of at least 10 days prior to the Special Meeting.
Q:
How can I vote my shares?
A:
You can vote your shares using one of the following methods:
Vote through the Internet at www.proxyvote.com using the instructions included in the proxy card or voting instruction card;
Vote by telephone using the instructions on the proxy card or voting instruction card if you received a paper copy of the proxy materials;●
Complete and return a written proxy or voting instruction card using the proxy card or voting instruction card if you received a paper copy of the proxy materials; or
●
Attend and vote in person at the meeting. If your shares are held in street or account name by a broker and you intend to vote in person at the meeting, you will need a copy of your account statement and verification from your broker that you were the beneficial owner of the shares in the account as of the Record Date.
Internet and telephone voting are available 24 hours a day, and if you use one of those methods, you do not need to return a proxy or voting instruction card.
Unless you are planning to vote in person at the Special Meeting, your vote must be received by 11:59 p.m. Eastern Standard Time, on
June 25, 2015.Even if you submit your vote by one of the first three methods mentioned above, youJuly 10, 2020.
You may still vote at the meeting if you are the record holder of your shares or hold a legal proxy from the record holder. Your vote at the Special Meeting will constitute a revocation of your earlier proxy or voting instructions.
Q:
How will my shares be voted if I return a blank proxy card?
| A: | If you send in your proxy card, but do not specify how you want to vote your shares, your shares will be voted by the named proxies as follows: |
A:
If you send in your proxy card, but do not specify how you want to vote your shares, your shares will be voted by the named proxies as follows:
●
FORthe amendment of the Certificate of Incorporation of the Company to provide thatincrease the Boardnumber of Directors will be divided into three classesauthorized shares of directors – Class I Directors, Class II Directors and Class III Directors – with the Class III directorCommon Stock from 25,000,000 shares to be selected by the holder of the Series C Senior Convertible Preferred Stock of the Corporation40,000,000 shares (Proposal No. 1); and
●
FORthe amendment of the Series C Preferred Certificate of IncorporationDesignation of the Company, in order to (a) extend the maturity date of the Series C Preferred by an additional two (2) years, (ii) add an equity cap in respect of the conversion of Series C Preferred into Common Stock of the Company, and (iii) add certain restrictions on the ability of the Company to provide that to the fullest extent permitted by the Delaware General Corporation Law, a director of the Company will not be liable to theCompanyor its stockholders for monetary damages for breach of fiduciary duty as a directorissue Series C Preferred (Proposal No. 2).
Q:
What happens if additional matters are presented at the Special Meeting?
| A: | Other than the two proposals described in this Proxy Statement, we are not aware of any other business to be acted upon at the Special Meeting. If you grant a proxy, the person named as proxy holder, K.W. (“K.D.”) Diepholz, Chairman and Chief Executive Officer, will have the discretion to vote your shares on any additional matters properly presented for a vote at the Special Meeting. |
A:
Other than the two proposals described in this Proxy Statement, we are not aware of any other business to be acted upon at the Special Meeting. If you grant a proxy, the person named as proxy holder, K.W. (“K.D.”) Diepholz, Chairman and Chief Executive Officer, will have the discretion to vote your shares on any additional matters properly presented for a vote at the Special Meeting.
Q:
Who will count the votes?
| A: | A representative of Signature Stock Transfer, Inc., the transfer agent for the Company, will be appointed at the Special Meeting to tabulate the votes and act as Inspector of Elections. |
A:
A representative of Signature Stock Transfer, Inc., the transfer agent for the Company, will be appointed at the Special Meeting to tabulate the votes and act as Inspector of Elections.
Q:
Where can I find the voting results of the Special Meeting?
| A: | We will announce preliminary voting results at the Special Meeting and publish final results in a Current Report on Form 8-K filed with the Securities and Exchange Commission within four business days following the Special Meeting. |
A:
We will announce preliminary voting results at the Special Meeting and publish final results in a Current Report on Form 8-K filed with the Securities and Exchange Commission within four business days following the Special Meeting.
Q:
Who will bear the cost of soliciting votes for the Special Meeting?
| A: | The solicitation of proxies will be conducted primarily by mail and electronically over the Internet, and the Company will bear all attendant costs. These costs will include the expense of preparing and mailing proxy solicitation materials for the Special Meeting and reimbursements paid to brokerage firms and others for their expenses incurred in forwarding solicitation materials regarding the Special Meeting to beneficial owners of our Common Stock. We may conduct further solicitation personally, telephonically, through the Internet or by facsimile through our officers, directors and employees, none of whom will receive additional compensation for assisting with the solicitation. We may generate other expenses in connection with the solicitation of proxies for the Special Meeting, which we will pay. |
A:
The solicitation of proxies will be conducted primarily by mail and electronically over the Internet, and the Company will bear all attendant costs. These costs will include the expense of preparing and mailing proxy solicitation materials for the Special Meeting and reimbursements paid to brokerage firms and others for their expenses incurred in forwarding solicitation materials regarding the Special Meeting to beneficial owners of our Common Stock. We may conduct further solicitation personally, telephonically, through the Internet or by facsimile through our officers, directors and employees, none of whom will receive additional compensation for assisting with the solicitation. We may generate other expenses in connection with the solicitation of proxies for the Special Meeting, which we will pay.
Q:
What do I need for admission to the Special Meeting?
| A: | You are entitled to attend the Special Meeting only if you are a stockholder of record or a beneficial owner as of the Record Date, or you hold a valid proxy for the Special Meeting from a stockholder of record. You should be prepared to present photo identification for admittance. If you are the stockholder of record, your name will be verified against the list of stockholders of record prior to your being admitted to the Special Meeting. If you hold your shares in street name, you must provide proof of beneficial ownership on the Record Date, such as a brokerage account statement showing that you owned the Company stock as of the Record Date, a copy of the Voting Instruction Form provided by your broker, bank or other nominee, or other similar evidence of ownership as of the Record Date. If you do not provide photo identification or comply with the other procedures outlined above upon request, you will not be admitted to the Special Meeting. |
A:
You are entitled to attend the Special Meeting only if you are a stockholder of record or a beneficial owner as of the Record Date, or you hold a valid proxy for the Special Meeting from a stockholder of record. You should be prepared to present photo identification for admittance. If you are the stockholder of record, your name will be verified against the list of stockholders of record prior to your being admitted to the Special Meeting. If you hold your shares in street name, you must provide proof of beneficial ownership on the Record Date, such as a brokerage account statement showing that you owned Company stock as of the Record Date, a copy of the Voting Instruction Form provided by your broker, bank or other nominee, or other similar evidence of ownership as of the Record Date. If you do not provide photo identification or comply with the other procedures outlined above upon request, you will not be admitted to the Special Meeting.
BACKGROUND TO PROPOSALS NO. 1 AND NO. 2 – THE NOTE PURCHASE AGREEMENT
On May 14, 2020, the Company closed a financing agreement with Golden Post Rail, LLC, a Texas limited liability company and certain individual investors.
1.
Pursuant to the May 14, 2020 Note Purchase Agreement (the “Note Purchase Agreement”) among the Company, Golden Post Rail, LLC, and the other parties listed on Exhibit A thereto (the “Remaining Purchasers”):
o
Golden Post acquired the following securities:
a)
A convertible promissory note; and
b)
A Common Stock purchase warrant; and
o
The Remaining Purchasers acquired the following securities:
a)
Convertible promissory notes; and
b)
Common stock purchase warrants.
2.
Also pursuant to the Note Purchase Agreement, the Company and Golden Post Rail, LLC have agreed to amend the common stock purchase warrant dated June 30, 2015, issued to Golden Post Rail, LLC in connection with that certain Securities Purchase Agreement dated as of May 6, 2015.
3.
The Note Purchase Agreement requires that the Company solicit from each stockholder entitled to vote at a special or annual meeting of the stockholders of the Company, which shall be held not later than July 14, 2020, such stockholders’ affirmative vote at the Shareholder Meeting for approval of the matters set forth in Proposal No. 1 and Proposal No. 2.
AMENDMENT TO THE CERTIFICATE OF INCORPORATION /
CLASSIFICATION
INCREASE AUTHORIZED SHARES OF
DIRECTORSBackground
COMMON STOCK
The Certificate of Incorporation of the Company, as amended to date, currently providesauthorizes the issuance of 25,000,000 shares of Common Stock of the Company.
The Board of Directors has approved, subject to stockholders’ approval, an amendment to the Certificate of Incorporation of the Company, as amended to date, to increase the number of shares of Common Stock authorized for two classesissuance from 25,000,000 to 40,000,000. The primary purpose of directors. Proposal No.the proposed increase is to accommodate (i) the conversion and/or exercise of the securities acquired in the Note Purchase Agreement transaction, (ii) the conversion and/or exercise of other outstanding securities of the Company, and (iii) the anti-dilution provisions of those securities of the Company containing such provisions. The Company also wishes to maintain flexibility to conduct future issuances of Common Stock, as well as future issuances of securities convertible into or exercisable for Common Stock from time to time to fund Company operations, consistent with its historical practice of raising financing through equity and debt issuances.
The Company currently does not have any plans, arrangements or understandings, written or oral, to issue any of the authorized but unissued shares of Common Stock that would become available if the proposed amendment to the Certificate of Incorporation of the Company is adopted. Furthermore, the Board of Directors is not proposing the increase with the intent of using the newly-authorized reserve as an anti-takeover device.
Accordingly, the Company is proposing that paragraph 1 contemplates thatof Article IV of the Amended and Restated Certificate of Incorporation be amended and restated to provide thatread in its entirety as follows (proposed new text is underlined and text proposed to be deleted is struck-through):
1.
Authorized Capital. The total number of shares of all classes of capital stock which the Boardcorporation shall have the authority to issue is 60,001,00045,001,000 shares, consisting of Directors(i) forty million (40,000,000)twenty-five million (25,000,000) shares of Common Stock, par value $.01 per share (“Common Stock”), and (ii) twenty million and one thousand (20,001,000) shares of Preferred Stock, par value $.0001 per share (“Preferred Stock”), of which one thousand (1,000) shares shall be divided into three classes of directors – Class I Directors, Class II Directors and Class III Directors – with the Class III director to be selected by the holderdesignated as Series A Preferred Stock.
Required Vote
Section 242(b) of the Series C Senior Convertible Preferred Stock of the Corporation.On May 6, 2015, the Company, Golden Post Rail, LLC, a Texas limited liability company (“Golden Post”), and Mr. Koy W. (“K.D.”) Diepholz, Chairman-CEO of the Company, executed a Securities Purchase Agreement (the “SPA”), which contemplates the acquisition by Golden Post of the following securities, at such time as the Company’s Certificate of Incorporation has been amended:
| a) | 1,600,000 shares of Series C Senior Convertible Preferred Stock (the “Series C Preferred”) at a purchase price of $2.50 per share ($4M USD); and |
| b) | A Common Stock Purchase Warrant (the “Warrant”) for the purchase of 2,000,000 shares of the Company’s Common Stock, at an exercise price of $2.50 per share. |
Delaware General Corporation Law provides that
The transaction contemplated by the SPA, and the related acquisition of the shares of Series C Preferred, will close (and fund) at such time as the Company’s Certificate of Incorporation is amended as contemplated by this Proposal No. 1 and Proposal No. 2 described below. The approval of the amendment contemplated by this Proposal No. 1 is a pre-condition to the closing of the transaction contemplated by the SPA.Effect of Amendment
The effect of the amendment contemplated by Proposal No. 1 is that the Class III Directors shall be elected by the vote of the holders of the issued and outstanding shares of Series C Preferred voting together as a single class. Upon its acquisition of shares of the Series C Preferred, Golden Post willclass shall be entitled to designatevote as a Class III Director. Each director, includingclass upon a Class III Director, shall hold office until such director’s successor shall have been duly elected and qualifiedproposed amendment, if the amendment would increase or until such director’s earlier death, resignation or removal.
Todecrease the extent that noaggregate number of authorized shares of Series C Preferred are issued and outstanding, then such class. Accordingly,
the Class III directors shall be elected by the vote of the holders of the issued and outstanding shares of Common Stock voting together as a single class.The classified structure of the Board of Directors may have the effect of delaying, deferring or preventing a change in control of the Company, even if the transaction could be determined to be beneficial to Company stockholders as a whole.
The affirmative vote of a majority of the 15,295,66317,218,525 shares of Common Stock outstanding and entitled to vote, is required for the approval of Proposal No. 1.
The Certificate of Amendment of Certificate of Incorporation that reflectsthe amendment contemplated by Proposal No. 1is attached hereto as Appendix I. The Certificate of Amendment will become effective upon the filing thereof with the Secretary of State of the State of Delaware, which is expected to occur as soon as is reasonably practicable following stockholder approval of this proposal.
THE BOARD
OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL NO. 1.
***
AMENDMENT TO THE CERTIFICATE OF
INCORPORATION /ELIMINATE DIRECTOR LIABILITYDESIGNATIONS FOR MONETARY DAMAGES
Background
THE SERIES C PREFERRED
As noted above, the transaction contemplatedNote Purchase Agreement requires that the Company solicit from each stockholder of the Company, such stockholders’ affirmative vote for approval of an amendment of the Series C Preferred Certificate of Designation of the Company, in order to (a) extend the maturity date of the Series C Preferred by an additional two (2) years, (ii) add an equity cap in respect of the SPA,conversion of Series C Preferred into Common Stock of the Company, and (iii) add certain restrictions on the ability of the Company to issue Series C Preferred.
Effect of Amendment
The Series C Preferred Certificate of Designation of the Company currently provides for a June 30, 2020 maturity date. The effect of the maturity date is this: to the extent the Series C Preferred is not converted to Common Stock of the Company, the Series C Preferred is subject to mandatory repurchase on the maturity date. The proposed extension of the maturity date of the Series C Preferred, would defer for two years – to June 30, 2022 -- the maturity date of the Series C Preferred. The deferral of the maturity date was a negotiated element of the Note Purchase Agreement and is highly favorable to the Company.
The proposed amendment also adds an equity cap in respect of the conversion of Series C Preferred into Common Stock of the Company. The proposed amendment would implement a “Beneficial Ownership Limitation” equal to 9.99% of the number of Common Shares outstanding immediately after giving effect to the conversion of Series C Preferred to Common Stock. The Beneficial Ownership Limitation may be increased or decreased at the holder’s request. The Beneficial Ownership Limitation has been requested by Golden Post Rail, LLC and the related acquisitionBoard of Directors wishes to accommodate that request.
The proposed amendment also adds certain restrictions on the ability of the Company to issue Series C Preferred. More specifically, the proposed amendment would add to the listing of Company actions that require the approval of holders of at least a majority of the aggregate Series C Preferred then outstanding, the following: “issue or authorize the issuance of any shares of Series C Preferred Stock to any entity or person.” The Company currently does not have any plans, arrangements or understandings, written or oral, to issue any of the authorized but unissued shares of Series C Preferred to any party other than Golden Post Rail, LLC. The proposed amendment simply harmonizes the Company’s plans, with the Company’s obligations under the Series C Preferred Certificate of Designation.
Required Vote
For Proposal No. 2, the holders of the shares of Series C Preferred will close (and fund) at such time asvote on an “as converted” basis, together with the Company’s Certificate of Incorporation is amended as contemplated by Proposal No. 1 described above, and this Proposal No. 2.Section 102(b)(7)holders of the Delaware General Corporation Law provides that the certificateshares of incorporation of a Delaware corporation may contain “A provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary dutyCommon Stock, as a director. . . .”
Accordingly,Proposal No. 2 contemplates that the Certificatesingle class. As of Incorporation of the CompanyMay 14, 2020, be amended to provide that “To the fullest extent permitted by the General Corporation Law, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.” The language of the proposed amendment goes on to provide for a high voting threshold for such provision to be amended, effectively making more difficult an amendment of such provision.
Effect of Amendment
Once adopted, the amendment will serve as a protective mechanism for directors of the Company, and make it easier for the Company to attract qualified individuals to serve on the Board of Directors.
The approval of the amendment contemplated by this Proposal No. 2 is a pre-condition to the closing of the transaction contemplated by the SPA. Upon its acquisition of17,722,825 shares of theCommon Stock were outstanding, of which 17,218,525 shares of Common Stock are entitled to vote. Also as of May 14, 2020, 1,734,992 shares of Series C Preferred Golden Post will be entitled to designate a Class III Director, and Golden Post desires that its board designee have the protection afforded by the amendment.
were outstanding, convertible into an aggregate of 2,450,363 shares of Common Stock.
The affirmative vote of a majority of the 15,295,663sum of (i) the 17,218,525 shares of Common Stock outstanding and entitled to vote, plus (ii) the2,450,363 shares of Common Stockissuable upon conversion of the Series C Preferred, is required for the approval of Proposal No. 2. The Certificate of Amendment ofto the Series C Preferred Certificate of IncorporationDesignation that reflectsthe amendment contemplated by Proposal No. 2is attached hereto as Appendix III. The Certificate of Amendment will become effective upon the filing thereof with the Secretary of State of the State of Delaware, which is expected to occur as soon as is reasonably practicable following stockholder approval of this proposal.
THE BOARD
OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL NO. 2.
QUORUM AND VOTING REQUIREMENTS
A majority of the votes of a voting group entitled to be cast at the Special Meeting on all matters constitutes a quorum of that voting group. If you submit a properly completed proxy or if you appear at the Special Meeting to vote in person, your shares will be considered part of the quorum. Directions to withhold authority to vote for any proposal, abstentions and broker non-votes (described below) will be counted to determine if a quorum for the transaction of business is present. Once a quorum is present, voting on specific proposals may proceed. If less than a quorum of our shares is represented at the Special Meeting, a majority of the shares actually represented may adjourn the meeting without further notice for a period not to exceed 30 days at any one adjournment. At such adjourned meeting at which a quorum is present or represented, any business may be transacted which might have been transacted at the Special Meeting as originally notified. Once a share is represented for any purpose at the Special Meeting, including the purpose of determining that a quorum exists, it is deemed present for quorum purposes for the remainder of the meeting and any adjournment thereof, unless a new record date is set for the adjourned meeting. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of stockholders so that less than a quorum remains.
Record Date and Voting Power
The Company has fixed the close of business (5:00 p.m. Eastern Standard Time) on May 15, 201514, 2020 as the “Record Date” to determine those shares eligible to vote at the Special Meeting. Only persons holding shares of the Company’s Common Stock or Series C Preferred as of the Record Date are entitled to vote at the Special Meeting. As of May 15, 2015,13, 2020, there were 15,295,66317,722,825 shares of Common Stock outstanding, of which 13,212,33017,218,525 shares of Common Stock are entitled to vote.vote. As a point of information, the 2,083,333504,300 shares of Common Stock held by Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, are neither counted for purposes of a quorum, nor entitled to vote. Also as of May 14, 2020, 1,734,992 shares of Series C Preferred were outstanding, convertible into an aggregate of 2,450,363 shares of Common Stock.
Effect of Abstentions and Broker Non-Votes
Because the approval of a majority of shares present and entitled to vote is required to approve the adoption of the amendments to our Certificate of Incorporation, abstentions have the same effect as a vote against these proposals.
If you hold shares through a broker or other nominee, your broker or nominee is permitted to exercise voting discretion only with respect to certain, routine matters. Broker non-votes are shares held by brokers or other nominees that do not have discretionary voting authority with respect to a matter and have not received specific voting instructions from the beneficial owner. Broker non-votes will be counted for purposes of establishing a quorum but will otherwise have no effect on the outcome of the vote on any of the matters presented for your vote, except as described above.
You can vote your shares using one of the following methods:
Vote through the Internet at www.proxyvote.com using the instructions included in the proxy card or voting instruction card;
Vote by telephone using the instructions on the proxy card or voting instruction card if you received a paper copy of the proxy materials;●
Complete and return a written proxy or voting instruction card using the proxy card or voting instruction card if you received a paper copy of the proxy materials; or
●
Attend and vote in person at the meeting. If your shares are held in street or account name by a broker and you intend to vote in person at the meeting, you will need a copy of your account statement and verification from your broker that you were the beneficial owner of the shares in the account as of the Record Date.
Internet and telephone voting are available 24 hours a day, and if you use one of those methods, you do not need to return a proxy or voting instruction card.
Unless you are planning to vote in person at the Special Meeting, your vote must be received by 11:59 p.m. Eastern Standard Time, on
June 25, 2015.
Even if you submit your vote by one of the first three methods mentioned above, you
You may still vote at the meeting if you are the record holder of your shares or hold a legal proxy from the record holder. Your vote at the Special Meeting will constitute a revocation of your earlier proxy or voting instructions.
You May Revoke or Change Your Vote
You may revoke a proxy at any time prior to its exercise by filing with the Secretary of the Company a written revocation or a duly executed proxy bearing a later date. A stockholder who votes in person at the Special Meeting in a manner inconsistent with a proxy previously filed on the stockholder’s behalf will be deemed to have revoked such proxy as it relates to the matter voted upon in person. Attendance at the Special Meeting will not in and of itself constitute a revocation of a proxy.
SECURITY OWNERSHIP OF CERTAINBENEFICIAL OWNERS AND MANAGEMENT The following table sets forth certain information regarding beneficial stock ownership as of May
13, 201514, 2020 of (i) all persons known to us to be beneficial owners of more than 5% of the Company’s outstanding Common
Stock;Stock, (ii) each director of the Company and our executive officers, and (iii) all of our officers and directors as a group. Each of the persons in the table below has sole voting power and sole dispositive power as to all of the shares shown as beneficially owned by such persons, except as otherwise indicated.
| Name of Beneficial Owner(1) | Number of Shares Beneficially Owned | Percent of Outstanding Shares |
K.W. (“K.D.”) Diepholz Chairman, CEO | 1,925,100(2) | 12.58% |
Mineras de DynaResource, SA de CV. (100% owned subsidiary of the Company) | 2,083,333(3) | 13.62% |
Dr. Jose Vargas Lugo President of Mexican Operations, Director | 274,508 | 1.80% |
Pedro Ignacio Teran Cruz Executive Vice President, Director of Exploration and Resource Development, Director | 37,500 | 0.245% |
David Hall, Executive V.P, CFO, Director | 175,000 | 1.14% |
Bradford J. Saulter VP., Investor Relations | 124,439 | 0.81% |
Officers and directors as a group (6 persons) | 4,619,880 | 30.20% |
(1) | The address for each such beneficial owner is 222 W. Las Colinas Blvd., Suite 744 East Tower, Irving, Texas 75039. |
(2) | Includes 150,000 shares of Common Stock held by Dynacap Group Ltd., a Texas limited liability company, for which Mr. Diepholz serves as the sole manager; accordingly, Mr. Diepholz is the beneficial owner of such shares. Mr. Diepholz disclaims all but 2.5% beneficial ownership in the shares held by Dynacap Group Ltd. |
(3) | The shares of Common Stock held by Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, are neither counted for purposes of a quorum, nor entitled to vote. |
Name of Beneficial Owner | Number of Shares Beneficially Owned | Percent of Outstanding Common Shares |
K.W. (“K.D.”) Diepholz Chairman, CEO | 1,864,000(1) | 10.5% |
Mineras de DynaResource, SA de CV. (100% owned subsidiary of the Company) | 504,300 (2) | 2.8% |
Golden Post Rail, LLC 1110 Post Oak Place Westlake, Texas 76262 | 2,450,363(3) | 12.1%(4) |
Gareth Nichol Denver, Colorado | 2646,924(5) | 14.7% |
Dr. Jose Vargas Lugo Executive Vice President, Director | 274,508 | 1.50% |
Pedro Ignacio Teran Cruz Executive Vice President, Director | 37,500 | 0.2% |
Bradford J. Saulter VP., Investor Relations | 124,439 | 0.7% |
John C. Wasserman Director | 134,389 | 0.7% |
Dale G. Petrini Director | 187,689(6) | 1.0% |
Officers and directors as a group (7 persons) | 2,622,525 | 14.8% |
(1) Such shares are pledged pursuant to a pledge agreement for the benefit of Golden Post Rail, LLC, in connection with the transaction evidenced by the Note Purchase Agreement.
(2) The shares of Common Stock held by Mineras de DynaResource S.A. de C.V., a subsidiary of the Company, are neither counted for purposes of a quorum, nor entitled to vote.
(3)Includes (i) 2,116,793 shares of Common Stock issuable upon the conversion of 1,734,992 shares of Series C Preferred Stock and (ii) 333,570 shares of Common Stock that may be issuable upon the conversion of those 1,734,992 shares of Series C Preferred Stock as a result of accrued and unpaid dividends as of May 14, 2020.
(4)Based upon 17,722,825 shares of the Common Stock outstanding as of October 31, 2019, as disclosed in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2019, that was originally filed by the Company with the SEC on November 22, 2019, and an aggregate of 2,450,363 shares of Common Stock issuable upon the conversion of 1,734,992 shares of Series C Preferred Stock, including accrued and unpaid dividends thereon.
(5)Includes 313,591 shares of Common Stock issuable upon the exercise of a common stock purchase warrant.
(6)Includes 31,359 shares of Common Stock issuable upon the exercise of a common stock purchase warrant.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information and reporting requirements of the Securities Exchange Act of 1939, under which we file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any materials we have filed with the SEC at the SEC’s public reference room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our SEC filings are also available to the public on the SEC’s website at http://www.sec.gov.www.sec.gov
. You may request a copy of any of our filings with the SEC at no cost, by contacting us at the following address or phone number:
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd. / Suite
744 East1910 North Tower
Las Colinas / Irving, TX 75039
Attention: K.W. (“K.D.”) Diepholz
Chairman and Chief Executive Officer
(972) 868-9066
OF
DYNARESOURCE, INC.
OFDYNARESOURCE, INC.,
DynaResource, Inc., a Delaware corporation organized and existing under and by virtue of the Delaware General (the “Corporation Law,
”),
FIRST: That
at a meeting of the Board of Directors of DynaResource, Inc. (the “Corporation”),the Corporation, resolutions were duly adopted setting forth
a proposed
amendmentsamendment to the
Amended and Restated Certificate of Incorporation of the Corporation
(as amended to date)(the “Amended and Restated Certificate of Incorporation”),
filed on November 28, 2012 with the Secretary of State of Delaware, declaring said
amendmentsamendment to be advisable and calling a meeting of the stockholders of the Corporation for consideration thereof. The resolutions setting forth the
amendmentsamendment are as follows:
RESOLVED,, that paragraph 1 of Article VIV of the Amended and Restated Certificate of Incorporation of the Corporation (as amended to date) be amended and restated to read in its entirety as follows:
1.
Authorized Capital. The Boardtotal number of Directors shall be divided into threeshares of all classes of directors, Class I Directors, Class II Directors and Class III Directors, all of whom shall be eligible for election at each annual meeting ofcapital stock which the stockholders. The Board of Directorscorporation shall have the rightauthority to fix the numberissue is 60,001,000 shares, consisting of directors from time to time; provided that the number of Class I Directors shall at all times comprise a majority of the directors and there shall always be at least one Class III Director. The Class I Directors shall be elected by the vote of the holders of the issued and outstanding shares of Series A Preferred Stock voting together as a single class (and to the extent that no shares of Series A Preferred Stock are issued and outstanding, then the Class I directors shall be elected by the vote of the holders of the issued and outstanding(i) forty million (40,000,000) shares of Common Stock, voting together as a single class)par value $.01 per share (“Common Stock”), the Class II Directorsand (ii) twenty million and one thousand (20,001,000) shares of Preferred Stock, par value $.0001 per share (“Preferred Stock”), of which one thousand (1,000) shares shall be elected by the vote of the holders of the issued and outstanding shares of Common Stock voting togetherdesignated as a single class, and the Class III Directors shall be elected by the vote of the holders of the issued and outstanding shares of Series CA Preferred Stock voting together as a single class (and to the extent that no shares of Series C Preferred Stock are issued and outstanding, then the Class III directors shall be elected by the vote of the holders of the issued and outstanding shares of Common Stock voting together as a single class).
Stock.
RESOLVED, that a new Article XII be added to the Certificate of Incorporation of the Corporation (as amended to date) to read in its entirety as follows:SECONDTo the fullest extent permitted by the General Corporation Law, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Without limiting the effect of the preceding sentence, if the General Corporation Law is hereafter amended to authorize the further elimination or limitation of the liabilities of a director, then the liability of a director of the Corporation will be eliminated or limited to the fullest extent permitted by the General Corporation Law, as so amended. This Article XII may only be amended with the vote of 95% of the outstanding equity of the Corporation, voting on a fully-diluted and as-converted to Common Stock basis.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of the Corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute were voted in favor of the amendments.amendment noted above.
THIRD: That the
amendments wereamendment noted above was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, DynaResource, Inc. has caused this certificate to be signed by its Chairman and CEO, this ___ day of July, 2020.
DYNARESOURCE, INC.
By: _______________________
K.W. (“K.D.”) Diepholz
Chairman & CEO
APPENDIX II
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF DESIGNATIONS OF THE POWERS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS OF PREFERRED STOCK AND QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS THEREOF
of
SERIES C SENIOR CONVERTIBLE PREFERRED STOCK
for
DYNARESOURCE, INC.
DYNARESOURCE, INC., a Delaware corporation (the “Corporation”), does hereby state and certify that:
FIRST: The name of the Corporation is DynaResource, Inc.
SECOND: The Corporation’s Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and Other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions thereof of Series C Senior Convertible Preferred Stock (“Series C Certificate of Designations”) was filed with the Secretary of State of the State of Delaware on June 29, 2015. THIRD: The Corporation filed a Certificate of Increase of Series C Senior Convertible Preferred Stock with the Secretary of State of the State of Delaware on May 13, 2020, to increase the number of shares constituting “Series C Senior Convertible Preferred Stock” to 1,734,992.
FOURTH: The Board of Directors of the Corporation, acting in accordance with the provision of Sections 141 and 242 of the Delaware General Corporation Law, adopted resolutions to amend the Series C Certificate of Designations as follows:
1.
Subsection 1(q) of the Series C Certificate of Designations is hereby amended in its entirety to read as follows:
““Maturity Date” means the date that is seven years after the Initial Issuance Date.”
2.
Subsection 6(d)(iii) of the Series C Certificate of Designation is hereby amended in its entirety to read as follows:
“(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 C 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 C 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 C Preferred Shares to participate in any such Distribution would result in such Holder of Series C Preferred Shares exceeding the Beneficial Ownership Limitation, then such Holder of Series C 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 C Preferred Shares until such time, if ever, as its right thereto would not result in such Holder of Series C Preferred Shares exceeding the Beneficial Ownership Limitation).”
3.
Subsection 6(d)(iv) of the Series C Certificate of Designation is hereby amended to add the following to the end of Subsection 6(d)(iv):
“Notwithstanding anything herein to the contrary, to the extent that a Holder of Series C Preferred Shares’ right to participate in any such issuance of any Common Stock or Common Stock Equivalents would result in such Holder of Series C Preferred Shares exceeding the Beneficial Ownership Limitation, then such Holder of Series C Preferred Shares shall not be entitled to participate in such issuance to such extent (or beneficial ownership of such shares of Common Stock as a result of such issuance to such extent) and such issuance to such extent shall be held in abeyance for such Holder of Series C Preferred Shares until such time, if ever, as its right thereto would not result in such Holder of Series C Preferred Shares exceeding the Beneficial Ownership Limitation).”
4.
Subsection 6(d)(vi) of the Series C Certificate of Designation is hereby amended to add the following to the end of Subsection 6(d)(vi):
“Notwithstanding anything herein to the contrary, to the extent that a Holder of Series C Preferred Shares’ right to participate in any such issuance of any DynaMexico Shares or DynaMexico Share Equivalents would result in such Holder of Series C Preferred Shares exceeding the Beneficial Ownership Limitation, then such Holder of Series C Preferred Shares shall not be entitled to participate in such issuance to such extent (or beneficial ownership of such DynaMexico Shares as a result of such issuance to such extent) and such issuance to such extent shall be held in abeyance for such Holder of Series C Preferred Shares until such time, if ever, as its right thereto would not result in such Holder of Series C Preferred Shares exceeding the Beneficial Ownership Limitation).”
5.
Section 6 of the Series C Certificate of Designation is hereby amended to add subsection (j) as follows:
“(j)
Conversion Limitations. The Company shall not effect any conversion of Series C Preferred Shares, and a Holder of Series C Preferred Shares shall not have the right to convert any portion of its Series C Preferred Shares, pursuant to this Section 6, to the extent that after giving effect to such conversion as set forth in this Section 6, the Holder of Series C 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 C Preferred Shares and its Affiliates and Attribution Parties shall include the number of Common Shares issuable upon conversion of any Series C 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 Company (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 C Preferred Shares or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(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 C Preferred Shares that the Company is not representing to such Holder of Series C Preferred Shares that such calculation is in compliance with Section 13(d) of the Exchange Act and such Holder of Series C 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 6(j) applies, the determination of whether the Series C Preferred Shares are convertible (in relation to other securities owned by the Holder of such Series C Preferred Shares together with any Affiliates and Attribution Parties) and of which portion of the Series C Preferred Shares is convertible shall be in the sole discretion of the Holder of such Series C Preferred Shares, and the submission of any Conversion Notice shall be deemed to be such Holder’s determination of whether the Series C 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 C Preferred Shares is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company 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 6(j), in determining the number of outstanding Common Shares, a Holder of Series C Preferred Shares may rely on the number of outstanding Common Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or transfer agent setting forth the number of Common Shares outstanding. Upon the written or oral request of a Holder of Series C Preferred Shares, the Company shall within one Business Day confirm orally and in writing to such Holder of Series C 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 Company, including Series C 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 9.99% of the number of Common Shares outstanding immediately after giving effect to the conversion of Series C Preferred Shares for Common Shares. Each Holder of Series C Preferred Shares, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 6(j); provided, that the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of Common Shares outstanding immediately after giving effect to the conversion of the Series C Preferred Shares held by such Holder of Series C Preferred Shares and the provisions of this Section 6(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 Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(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 C Preferred Shares.”
6.
Subsection 8(c) of the Series C Certificate of Designation is hereby amended to add subsection (ix) as follows:
“(ix)
issue or authorize the issuance of any shares of Series C Preferred Stock to any entity or person.”
FIFTH:
This Certificate of Amendment to the Series C Certificate of Designations was submitted to the stockholders of the Corporation and was duly approved by the required vote of stockholders of the Corporation in accordance with Sections 222 and 242 of the Delaware General Corporation Law.
[Remainder left blank; signature page follows.]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the Series C Certificate of Designations to be executed by a duly authorized officer of the Corporation as of ________ of July, 2020.
DYNARESOURCE, INC.,
a Delaware corporation
K.W. (“K.D.”) Diepholz
Chairman & CEO
DYNARESOURCE, INC.
PROXY OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD JULY 13, 2020
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned, having received the Notice of Special Meeting of Stockholders and Proxy Statement, hereby revokes all previous proxies and appoints K.W. (“K.D.”) Diepholz, the proxy of the undersigned, with full power of substitution, to vote all shares of common stock of DynaResource, Inc. that the undersigned is entitled to vote, either on his or her own behalf or on behalf of an entity or entities, at the Special Meeting of Stockholders of DynaResource, Inc. to be held at the Company’s office, located in The Urban Towers of Las Colinas, at 222 W. Las Colinas Blvd., Suite 1910 North Tower, Irving, Texas 75039, on Monday, July 13, 2020, at 3:00 PM Central Standard Time, and at any adjournment or postponement thereof, with the same force and effect as the undersigned might or could have if personally present at the Special Meeting.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL NO. 1 AND PROPOSAL NO. 2
PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK
Proposal No. 1 (AMENDMENT TO THE CERTIFICATE OF INCORPORATION): To increase the number of shares of Common Stock authorized for issuance from 25,000,000 to 40,000,000.
[ ] FOR [ ] WITHHOLD AUTHORITY
Proposal No. 2 (AMENDMENT TO THE CERTIFICATE OF DESIGNATIONS FOR THE SERIES C PREFERRED STOCK): To (a) extend the maturity date of the Series C Preferred by an additional two (2) years, (ii) add an equity cap in respect of the conversion of Series C Preferred into Common Stock of the Company, and (iii) add certain restrictions on the ability of the Company to issue Series C Preferred.
[ ] FOR [ ] WITHHOLD AUTHORITY
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS SPECIFIED ABOVE. IF NO CHOICE IS SPECIFIED, THIS PROXY WILL BE VOTED IN FAVOR OF PROPOSAL NO. 1 AND PROPOSAL NO. 2. THE PROXY IS AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING OR ANY POSTPONEMENT OR ADJOURNMENT THEREOF.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ACCOMPANYING ENVELOPE.
| DYNARESOURCE, INC. | |
| | | |
| By: K.W. (“K.D.”) Diepholz | |
| Chairman & CEO | |
| Signature of Stockholder | | |
12Signature of Stockholder |
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting –
The Notice and Proxy Statement and Annual Report are available at:
www.proxyvote.com.
DYNARESOURCE, INC.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR A SPECIAL MEETING OF STOCKHOLDERS
THE UNDERSIGNED, revoking all previous proxies, hereby appoints K.W. (“K.D.”) Diepholz as attorney, agent and proxy with power of substitution, and with all powers the undersigned would possess if personally present to vote all shares of Common Stock of DynaResource, Inc. (the “Company”) which the undersigned is entitled to vote at the Special Meeting of Stockholders of the Company, to be held on Friday, June 26, 2015, at 3:00 PM Central Standard Time at the Company’s offices located at 222 W. Las Colinas Blvd., Suite 744 East Tower, Irving, Texas 75039, and at all adjournments thereof.
(Continued and to be Signed on the Reverse Side)
|
DynaResource, Inc.
222 W. Las Colinas Blvd.
Suite 744 East Tower
Irving, Texas 75039
Attn: K.W. (“K.D.”) Diepholz
| VOTE BY INTERNET – www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Central Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via email or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE – 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Central Time the day before the voting deadline or meeting date. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, New York 11717.
|
KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN LOWER PORTION ONLY
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK, AS FOLLOWS:
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
The Board of Directors recommends you vote FOR the following Proposals: | For | Against | Abstain |
| | | |
1. Amend the Certificate of Incorporation to provide that the Board of Directors will be divided into three classes of directors – Class I Directors, Class II Directors and Class III Directors – with the Class III director to be selected by the holder of the Series C Senior Convertible Preferred Stock of the Corporation. | ☐ | ☐ | ☐ |
| | | |
2. Amend the Certificate of Incorporation to provide that to the fullest extent permitted by the Delaware General Corporation Law, a director of the Company will not be liable to theCompany or its stockholders for monetary damages for breach of fiduciary duty as a director. | ☐ | ☐ | ☐ |
| | | |
3. In their discretion, the proxy is authorized to vote upon such other business as may properly come before the meeting. | ☐ | ☐ | ☐ |
NOTE: The shares represented by this proxy will be voted in accordance with the instructions given. If no such instructions are given, the shares represented by this proxy will be voted in favor of: (1) Amending the Certificate of Incorporation to provide that the Board of Directors will be divided into three classes of directors; (2) Amending the Certificate of Incorporation to provide that a director of the Company will not be liable to theCompany or its stockholders for monetary damages for breach of fiduciary duty; and (3) such other business as may properly come before the meeting.
Please sign exactly as your name(s) appear(s) hereon.name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as attorney, executor, administrator, attorney, trustee or other fiduciary,guardian, please give full title as such. Joint owners should each sign personally. All holders must sign. If the signer is a corporation, orplease sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in full corporate or partnership name by authorized officer.
| | | |
Signature (please sign within box) | Date | Signature (Joint Owners) | Date |
person