dynr_def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a party other than the Registrant ☐
Check
the appropriate box:
☐
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
DYNARESOURCE, INC.
(Name of Registrant as Specified In Its
Charter)
Payment
of Filing Fee (Check the appropriate box):
☒
No fee required.
☐
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 transaction applies:
2.
Aggregate number of
securities to which transaction applies:
3.
Per unit price or
other underlying value of 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 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.
1.
Amount Previously
Paid:
2.
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Registration Statement
No.:
DYNARESOURCE, INC.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd. / Suite 1910 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 1910 North Tower, Irving, Texas 75039, on 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
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
June
12, 2020
DYNARESOURCE, INC.
The Urban Towers of Las Colinas
222 W. Las Colinas Blvd. / Suite 1910 North Tower
Las Colinas / Irving, TX 75039
PROXY STATEMENT
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 1910
North Tower, Irving, Texas 75039, on 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 June 11, 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
AND OUR SPECIAL MEETING
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
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:
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:
●
FOR the amendment of the Certificate of
Incorporation of the Company to increase the number of authorized
shares of Common Stock from 25,000,000 shares to 40,000,000 shares;
and
●
FOR the amendment 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 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:
Who
is entitled to vote at the Special Meeting?
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, 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:
●
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.
Unless
you are planning to vote in person at the Special Meeting, your
vote must be received by 5:00 p.m. Central Standard Time, on
Friday, July 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:
●
FOR the amendment of the Certificate of
Incorporation of the Company to increase the number of authorized
shares of Common Stock from 25,000,000 shares to 40,000,000 shares
(Proposal No. 1); and
●
FOR the 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 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 (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.
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.
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.
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.
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
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.
PROPOSAL NO. 1
AMENDMENT TO THE CERTIFICATE OF INCORPORATION /
INCREASE AUTHORIZED SHARES OF COMMON STOCK
The
Certificate of Incorporation of the Company, as amended to date,
currently authorizes 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 issuance from 25,000,000 to 40,000,000. The primary purpose of
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 of Article IV of the
Amended and Restated Certificate of Incorporation be amended and
restated to read 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 corporation shall have the authority to issue is 60,001,000 45,001,000 shares,
consisting of (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
designated as Series A Preferred Stock.
Required Vote
Section 242(b) of the Delaware General Corporation Law provides
that the holders of the
outstanding shares of a class shall be entitled to vote as a class
upon a proposed amendment, if the amendment would increase or
decrease the aggregate number of authorized shares of such class.
Accordingly, the affirmative
vote of a majority of the 17,218,525 shares of Common Stock
outstanding and entitled to vote, is required for the approval of
Proposal No. 1.
The Certificate of Amendment that reflects the amendment contemplated by Proposal
No. 1 is 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.
Recommendation
THE BOARD RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL
NO. 1.
***
PROPOSAL NO. 2
AMENDMENT TO THE CERTIFICATE OF DESIGNATIONS FOR THE SERIES C
PREFERRED
As
noted above, the Note 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 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 Board 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 vote on an “as converted” basis, together with the
holders of the shares of Common Stock, as a single class. 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. 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.
The affirmative vote of a majority of the sum of (i) the 17,218,525
shares of Common Stock outstanding and entitled to vote, plus (ii)
the 2,450,363 shares of
Common Stock issuable upon
conversion of the Series C Preferred, is required for the approval
of Proposal No. 2.
The Certificate of Amendment to the Series C Preferred Certificate
of Designation that reflects the amendment contemplated by Proposal
No. 2 is attached hereto as
Appendix II.
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.
Recommendation
THE BOARD RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL
NO. 2.
QUORUM AND VOTING REQUIREMENTS
Quorum Requirement
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 14, 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 13, 2020, there were 17,722,825 shares of Common Stock 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. 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.
How You Can Vote
You can
vote your shares using one of the following methods:
●
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.
Unless
you are planning to vote in person at the Special Meeting, your
vote must be received by5:00 p.m. Central Standard Time, on Friday,
July 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.
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 CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The
following table sets forth certain information regarding beneficial
stock ownership as of May 14, 2020 of (i) all persons known to us
to be beneficial owners of more than 5% of the Company’s
outstanding Common 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
|
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.
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:
DynaResource,
Inc.
The
Urban Towers of Las Colinas
222 W.
Las Colinas Blvd. / Suite 1910 North Tower
Las
Colinas / Irving, TX 75039
Attention:
K.W. (“K.D.”) Diepholz
Chairman and Chief Executive Officer
(972)
868-9066
APPENDIX I
CERTIFICATE OF AMENDMENT
OF
DYNARESOURCE, INC.
DYNARESOURCE, INC., a Delaware corporation (the
“Corporation”),
DOES
HEREBY CERTIFY:
FIRST:
That at a meeting of the Board of
Directors of the Corporation, resolutions were duly adopted
setting forth a proposed amendment to the Amended and Restated
Certificate of Incorporation of the Corporation (the
“Amended
and Restated Certificate of Incorporation”), filed on
November 28, 2012 with the Secretary of State of Delaware,
declaring said amendment to be advisable and calling a meeting of
the stockholders of the Corporation for consideration thereof. The
resolutions setting forth the amendment are as
follows:
RESOLVED, that
paragraph 1 of Article IV of the Amended and Restated Certificate
of Incorporation be amended and restated to read in its entirety as
follows:
1.
Authorized Capital.
The total number of shares of all classes of capital stock which
the corporation shall have the authority to issue is 60,001,000
shares, consisting of (i) forty million (40,000,000) 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
designated as Series A Preferred Stock.
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 amendment noted
above.
THIRD:
That the amendment 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.
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Signature of Stockholder
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Signature of Stockholder
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NOTE: Please sign exactly as your name or names appear on this
Proxy. When shares are held jointly, each holder should sign. When
signing as executor, administrator, attorney, trustee or guardian,
please give full title as such. If the signer is a corporation,
please sign full corporate name by duly authorized officer, giving
full title as such. If signer is a partnership, please sign in
partnership name by authorized person